FEDERAL COURT OF AUSTRALIA

Zhao v Minister for Immigration and Border Protection [2019] FCA 1530

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal to be fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellants appeal from a decision of a judge of the Federal Circuit Court dismissing an application for judicial review of a decision of the second respondent (the Tribunal) which affirmed a decision of a delegate of the Minister to cancel the first appellant’s Subclass 801 (Spouse) visa (the 801 visa). The second appellant is the adult daughter of the first appellant and part of the same family unit. As a consequence of the cancellation of the 801 visa, the second appellant’s visa was automatically cancelled under s 140(1) of the Migration Act 1958 (Cth) (the Act).

2    By notice of appeal filed on 18 May 2018, the appellants have raised three grounds of appeal. The first two grounds concern certificates issued by the Minister pursuant to s 375A of the Act. The third ground alleges that it was not open to the primary judge to conclude that the Tribunal had not erred in the exercise of its jurisdiction because the Tribunal had erred in a critical finding of fact, namely, finding that there was no independent corroborative evidence to establish that the first appellant did not have any criminal convictions in China.

3    For the reasons set out below, I would reject this appeal. Let me begin with some background.

Background

4    The appellants are citizens of China.

5    On 27 April 2010, the appellants were granted Subclass 820 Partner (Temporary) visas (the 820 visas).

6    On 7 May 2014, the first appellant was notified that he had been granted the 801 visa.

7    On 10 March 2015, the Minister through the relevant Department sent the first appellant a Notice of Intention to Consider Cancellation (the NOICC) of the 801 visa under s 109 of the Act. The basis of the proposed cancellation was that the delegate considered that the first appellant had not complied with s 103 of the Act which then provided:

A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.

8    ‘Bogus document’ was then defined in s 97 of the Act (at the relevant time) which provided:

in relation to a person, means a document that the Minister reasonably suspects is a document that

  (a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

9    The Department noted that in order to support his application for the 801 visa and to satisfy the requirement of Public Interest Criterion (PIC) 4001, the first appellant had submitted a copy of a “Notarial Certificate for non-criminal” dated 25 September 2013 (the Notarial Certificate) from China. The Notarial Certificate provided that the first appellant “had no record of committing offence (sic) against the criminal laws during his residence in China till September 25, 2013”.

10    The NOICC advised as follows:

The department received confirmation from the Chinese authorities that your police clearance has been fraudulently altered. The genuine Notarial Certificate for non-criminal, (2013) SEZ.ZI, No. 1116 was issued to a different person by a different notary officer. Further, the notary officer, Yang Shudong, who signed your notary certificate, had retired in February 2011; therefore, it was impossible for him to issue you with the notary certificate in 2013.

In addition, the Chinese authorities have provided the department with a Detention Warrant dated 21 August 2007 for your arrest.

11    On 18 March 2015, the first appellant, through his representatives, sought an extension of time to provide a response to the NOICC on the basis that he was seeking access to documents pursuant to freedom of information legislation.

12    On 1 May 2015 and 7 May 2015, the first appellant provided a response to the NOICC.

13    On 22 May 2015, the Department advised the first appellant that a delegate of the Minister had decided to exercise the discretion to cancel the 801 visa.

14    On 28 May 2015 the appellants applied to the former Migration Review Tribunal (“the MRT”) to review the cancellation.

15    On 2 June 2015 the Minister issued a certificate to the MRT under s 375A of the Act restricting the disclosure of documents referred to therein to the MRT only (“the first s 375A certificate”). At this time the MRT did not make the appellants aware of the existence of the first s 375A certificate or of the documents to which the certificate referred, either specifically or in a general sense.

16    On 25 June 2015 the appellants wrote to the MRT requesting access to written material relating to the appellants’ application for review of the delegate’s decision to cancel.

17    From 1 July 2015 the MRT became part of the Administrative Appeals Tribunal as a result of the Tribunals Amalgamation Act 2015 (Cth) (‘Amalgamation Act’).

18    On 22 July 2015 the Minister issued another s 375A certificate. But notwithstanding that the MRT did not exist at that time, this further certificate was directed to the MRT restricting the disclosure of documents referred to therein to the MRT only (“the second s 375A certificate”). At this time, the Tribunal, meaning the Administrative Appeals Tribunal, did not make the appellants aware of the existence of the second s 375A certificate or of the documents to which the certificate referred, either specifically or in a general sense.

19    On 24 July 2015 the Tribunal wrote to the appellants regarding their request for access to written materials that had been made in June 2015. The Tribunal noted that access had been granted to the material as specified in the letter, but further noted as follows:

Folios 163, 164, 188, 189, 191, 209 to 228 and 249 to 257 on department file CLF2010/10086 and folios 1 to 42 on department file BCC2014/2242692 are excluded from release because they are subject to a certificate made by the department under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.

20    I would note at this point that the folios referenced in the Tribunal’s 24 July 2015 letter were those covered by the first s 375A certificate and the second s 375A certificate (the s 375A certificates).

21    On 13 August 2015 the Tribunal wrote to the appellants advising them that the Tribunal was in possession of documents which the appellants had sought from it, but which the Tribunal was unable to release because they were protected under s 375A of the Act. The letter stated, “The Tribunal is writing to you to provide you with sufficient information to enable you to meaningfully comment on the adverse information” before setting out a summary of the information it held which it claimed was protected. This disclosure only set out information which had already been disclosed to the appellants by the Department prior to the original decision to cancel the 801 visa. The Tribunal’s letter did not reveal or even suggest the extent of the adverse information that the Tribunal had withheld from the appellants in reliance on the s 375A certificates.

22    Further, the Tribunal never expressly informed the appellants that it had received two s 375A certificates. Further, it did not give the appellants the certificates. Further, it did not disclose that the second 375A certificate was directed to the MRT.

23    I would note at this point that the appellants say that among the documents in the possession of the Tribunal were documents which were adverse and were relevant or potentially relevant to the issues arising on the review. It is said that these were particularly damaging to the first appellant as it was stated that the first appellant may be “dangerous”. Further, it is said that there were documents concerning the Department’s investigation of the relationship between the first appellant and his wife which had occurred prior to the granting of the 801 visa, but which cast doubt upon the genuineness of the relationship. I would note at this point that this last submission goes nowhere because the Department was ultimately satisfied as to the genuineness of the relationship in any event.

24    Further, the appellants say that they only became aware of these matters through the disclosure made by the lawyers for the Minister in the proceeding in the Federal Circuit Court of the s 375A certificates and most of the documents withheld from them by the Tribunal pursuant to the s 375A certificates.

25    On 20 August 2015 the Tribunal conducted a hearing of the appellants’ application for review. On 18 January 2016 the Tribunal gave its decision affirming the cancellation of the 801 visa.

26    The Tribunal noted the issue on review to be whether the ground for cancellation under s 103 was made out, and if so, whether the first appellant’s visa should be cancelled. The Tribunal identified that it had no jurisdiction in respect of the second appellant as her visa was automatically cancelled by operation of s 140(1) of the Act and there was no ‘reviewable’ decision. The Tribunal found that the NOICC issued under s 107 of the Act complied with the statutory requirements and that the first appellant caused a bogus document to be given to the Department because it was counterfeit or had been altered by a person who did not have the authority to do so. Accordingly, the Tribunal found that there was non-compliance with s 103 by the first appellant in the way described in the NOICC.

27    The Tribunal then went on to consider whether the 801 visa should be cancelled, and in doing so had regard to the prescribed circumstances set out in the relevant regulation of the Migration Regulations 1994 (Cth) as required by s 109(1)(b) and (c). Having considered all of the circumstances, the Tribunal concluded that the 801 visa should be cancelled.

28    The appellants say that nothing in the decision suggested that the Tribunal sought to bring to the appellants’ attention the existence of the s 375A certificates or the extent of the adverse material it held.

29    The appellants also point out that in its reasons for decision, the Tribunal stated:

The fact is that there was no independent evidence to corroborate [the first appellant’s] claim that he did not have criminal convictions in China on (sic) September 2013, or that he currently does not have criminal convictions in China.

30    But they say that the Tribunal was at that time in possession of a document which had not been disclosed to the appellants, being an internal Department email dated 24 July 2014, which stated that the first appellant “does not appear to have been charged, let alone convicted”. I will discuss the significance of this document later.

31    Further, the appellants say that the first appellant had not left Australia since 2005 and therefore could not have been convicted of any offences in China after 2005. They say that he had provided a “clear” Chinese police clearance in 2009, although the Tribunal said that it placed no weight on the 2009 police clearance.

32    By amended application dated 13 November 2017 and filed on 14 November 2017 in the Federal Circuit Court, the appellants applied for judicial review of the Tribunal’s decision.

33    On 30 April 2018, the primary judge dismissed the appellants’ application. The appellants have appealed that decision.

Grounds of Appeal

34    Let me deal with each ground of appeal in terms. It is not necessary at this point to linger on the primary judge’s reasoning.

Grounds 1 & 2 – failure to accord procedural fairness to the first appellant

35    Mr Gregory Hughan, counsel for the appellants, submitted that the Tribunal’s letters to the appellants of 24 July 2015 and 13 August 2015 did not inform them meaningfully of the material that the Tribunal had decided to withhold from disclosure in reliance on the s 375A certificates. It is said that the Tribunal never revealed that there were two s 375A certificates, or the asserted bases of the public interest/s served by non-disclosure.

36    They say that the 13 August 2015 letter did no more than refer to matters already known to the appellants. However, among the documents in the possession of the Tribunal were other documents which were adverse to the first appellant, as well as one which was favourable to him (the 24 July 2014 email referred to above), and which were relevant to the issues arising on the review.

37    The appellants submit that the Tribunal did not disclose to the appellants at the hearing or otherwise that there were two certificates issued under s 375A, covering more extensive adverse information than the Tribunal had revealed. Further, they say that its decision further demonstrates that it revealed only that there was a certificate, which was itself apt to mislead the appellants. They say that if the Tribunal had revealed that it had two certificates, the appellants may have been alerted to the conclusion that the Tribunal had documents involving other matters than it had revealed on 13 August 2015.

38    Further, they say that the Tribunal did not give the appellants either of the two certificates. And if it had done so, the appellants would have been able to infer that the material in the Tribunal’s possession dealt with more than the matters it had revealed.

39    It is said that this was all procedurally unfair to the appellants. The Tribunal had in its possession adverse material of which the appellants were unaware. The appellants had no way of knowing if the Tribunal’s decision was somehow influenced by this material.

40    Further, it is said that the conduct of the Tribunal in relation to the s 375A certificates and withholding documents was misleading to the appellants. It revealed only those parts of the material which were already apparent to the appellants and did not provide the certificates themselves or the asserted basis of the public interest for non-disclosure.

41    Further, they referred to Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 363 ALR 599 (SZMTA).

42    Now the appellants accept that they bear the onus of showing that the breach of procedural fairness resulted in jurisdictional error in the sense that the breach was material.

43    In this context they say that there were several ways in which knowledge that there were two s 375A certificates, the content of the second s 375A certificate and the extent of the material withheld by the Tribunal could have had an impact on the outcome of the proceeding before the Tribunal.

44    They point to Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 where the Full Court held that the disclosure of a s 375A certificate, as distinct from the subject matter of the certificate, may be of importance where, for example, the certificate was invalid. They say that failure to disclose the certificate would deprive an applicant of a chance to challenge the validity of the certificate through judicial review. Moreover, they say that the disclosure of a certificate would usually not undermine the confidentiality which s 375A of the Act was designed to protect because the certificate would not disclose the information in question.

45    The appellants say that they could have mounted an argument that the second certificate of 22 July 2015 was invalid because it was directed to the MRT, which did not then exist, not to the Tribunal. They say that the second s 375A certificate was facially invalid. Now the primary judge stated (at [77]):

In my opinion, it is more than likely that the failure of the Minister to refer to the Tribunal by its correct name on the Second Certificate would only have given rise to a technical invalidity.

46    But the appellants submit that the concept of “technical invalidity” in this context is meaningless. Either the certificate was valid, in which case the Tribunal was justified in withholding documents from the appellants, or it was not, in which case the material being the Interpol Red Notice (IRN) and related material referring to the first appellant as “dangerous”, but supporting that he had not been convicted of any offences, had to be disclosed to him.

47    Further, they say that there is nothing in the Amalgamation Act which renders a notice directed to the non-existent MRT after 1 July 2015 to be a notice directed to the Tribunal. One of the transitional provisions of the Amalgamation Act renders certain notices given by the Department as valid notices for the purposes of the Tribunal (see Schedule 3 item 15AE.). But there is no such transitional provision which would save the second s 375A certificate from invalidity. I agree that there is no such transitional provision applying relevantly to the context that I am dealing with. But this absence does not assist the appellants to necessarily imply invalidity of the second s 375A certificate by reason of the incorrect MRT reference. I will return to this later.

48    Further, they say that if the material the subject of the second 375A certificate were made known to the first appellant, he could have applied for the Tribunal member to recuse herself on the basis of a reasonable apprehension of bias. Alternatively, he could have chosen to confront the assertion that he was “dangerous” directly and explained its relevance to the fears he had about returning to China. In addition, he could have relied on the 24 July 2014 email to support his argument that he had not been convicted of any offences.

49    Similarly, it is said that the first appellant could have confronted directly the material showing that at some time prior to the grant of the 801 visa the Department considered his spousal relationship was not genuine, or he could have asked the Tribunal member to recuse herself.

50    In all the circumstances, it is submitted that it cannot be said that the Tribunal’s breach of procedural fairness did not deprive the first appellant of an opportunity to approach the application for review differently and to have obtained a different outcome. Accordingly, it is said that the breach was material and resulted in jurisdictional error.

51    I do not accept most of the appellants’ arguments.

52    Let me begin with SZMTA. In SZMTA, the plurality said with reference to a s 438 certificate that (at [2]):

The Full Court was correct to take the view that the fact of notification of the existence of a certificate triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

53    Similarly, a notification under s 375A enlivens an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review under the Act. But as Ms Julia Lucas, counsel for the Minister, contended, s 438 of the Act is not relevantly in the same terms as s 375A. Section 438(3)(b) permits what s 375A does not, namely, the disclosure to an applicant of material the subject of a certificate.

54    Section 375A of the Act relevantly provides:

Certain information only to be disclosed to Tribunal

(1)    This section applies to a document or information if the Minister:

(a)    has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

(b)    has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

(2)     If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

(a)    the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

(b)    the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

55    I would also note by way of preliminary observation before proceeding further that the plurality in SZMTA indicated that in treating sections such as s 438 or in the present case s 375A as applicable to information or documents (at [47]):

the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision…Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

56    Now in relation to the first s 375A certificate, the appellants do not contend that they were prior to the Tribunal making its decision unaware of the existence of that certificate. Furthermore, the evidence supports the inference that the existence of this certificate was disclosed to them by the Tribunal in its letter dated 24 July 2015.

57    Rather the appellants argue that the Tribunal failed to disclose to them the existence of the second s 375A certificate. But I note that by reason of the Tribunal’s letter of 24 July 2015, the appellants were informed of the operation of s 375A covering certain folios of the Department’s file referred to therein. And significantly, those folios were collectively covered by both certificates.

58    Accordingly, in my view the appellants’ complaint that there was a failure to disclose that there were two s 375A certificates rather than one certificate does not greatly matter.

59    First and to be clear, there is ambiguity in the Tribunal’s letter of 24 July 2015 as to whether the Tribunal was saying that there was only one certificate. True it is that the letter refers to each of the folios and then says that “they are subject to a certificate”. But that can be read as saying that for a particular folio there is a certificate, rather than saying that there is one certificate for all folios. But let me assume in favour of the appellants that it is representing the latter, that still does not take the appellants far.

60    Second, whatever may be said about the one certificate versus two certificates point, the substance is that the Tribunal disclosed that all relevant folios were the subject of a s 375A certificate.

61    Third, if the appellants had been told of the two certificates that would have made no material difference. If the existence of two certificates had been disclosed, apart from taking the MRT reference error point which I will separately discuss, the appellants would have been in the same position. Apart from the MRT point there would have been nothing else potentially impugning the validity of the second s 375A certificate and the documents the subject thereof would not and could not have been disclosed to the appellants. The appellants do not allege that the s 375A certificates do not identify a sufficient basis for a claim of public interest immunity and that the Tribunal thereby acted on invalid certificates in that respect. It is only the validity of the second s 375A certificate which is called into question and on a different basis concerning the wrong MRT reference.

62    In summary, any error made not to disclose the two certificates, any misrepresentation which may have occurred from the text of the 24 July 2015 letter and any lack of procedural fairness relating thereto had no material consequences. In other words any relevant breach was not material. Accordingly there was no jurisdictional error.

63    The appellants challenge the validity of the second s 375A certificate on the basis that it refers to the “MRT” and not the “AAT”. The appellants submit that the legislative intention is to invalidate notifications issued by the Department where incorrect references were made to the MRT.

64    The appellants say that if the existence of the second s 375A certificate had been disclosed, the appellants would have called for its production and then submitted that it was invalid by reason of the wrong MRT reference. It is then said that they might have procured access to the documents the subject of that certificate. It is said that they were denied a valuable opportunity to so argue as to invalidity or to ultimately obtain the documents.

65    But there are a number of difficulties for the appellants.

66    First, even if they obtained the second s 375A certificate and argued invalidity, such an argument might have been rejected under the slip rule. Alternatively, the MRT reference may have been construed as a reference to the MRT or its successor. Alternatively it might be said that the relevant legislative intent did not entail invalidity by reason of such an error (see the plurality’s reasons in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] to [93]). I would note on this last point that I would reject the appellants’ argument concerning the absence of an appropriate transitional provision in the Amalgamation Act as somehow necessarily implying invalidity of the second s 375A certificate by reason of the incorrect MRT reference.

67    Second, assuming for the moment and in favour of the appellants that there was such invalidity of the second s 375A certificate or at the least a lack of opportunity to argue for invalidity, that would have taken the appellants nowhere. If the second s 375A certificate had been disclosed and produced to the appellants and the appellants had asserted invalidity, it is most likely that the Tribunal would have put such an argument to the Department for its response. The likely result from that is that the Department would simply have issued a new certificate with the correct reference to the Tribunal rather than the MRT. In that eventuality the point would have gone nowhere and the appellants would not have had access to the documents.

68    In summary, even assuming for the sake of argument that the second s 375A certificate was invalid, I do not consider that the appellants lost any valuable opportunity or that any denial of procedural fairness (if there was any) was material. As was said by the plurality in SZMTA at [45], “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision”. In the present case, compliance could not realistically have resulted in a different decision.

69    The appellants also say that if the material which was the subject of the second s 375A certificate was known to the first appellant, he could have:

(a)    applied to have the Tribunal member recuse herself on the basis of apprehended bias;

(b)    chosen to confront the assertion that he was “dangerous” directly and explain its relevance to the fears he had about returning to China;

(c)    relied on the 24 July 2014 email to support his argument that he had not been convicted of any offences; and

(d)    confronted the material which disclosed that at some time prior to the grant of his spousal visa, the Department considered his spousal relationship was not genuine.

70    But if the s 375A certificates are in fact valid or a second s 375A certificate most likely and easily re-issued, then the submission fails. The appellants would not have had access to that material.

71    Further and in any event, I note that the reference contained in the material to the first appellant being “dangerous” was information contained in an IRN which was contained in folio 163 of the s 375A documents and covered by the second s 375A certificate. The Minister has claimed public interest immunity over this document, and the appellants have not at any stage required the Minister to further substantiate this claim for public interest immunity.

72    Further, as the primary judge accepted, the IRN had a level of sensitivity which had the effect of limiting the scope of the general obligation to afford procedural fairness. But in any event and importantly, as noted by the Tribunal, the delegate had stated in her decision that the IRN was not the subject of non-compliance in the NOICC and considered it to be an irrelevant consideration. Further, the Tribunal specifically stated that it gave no weight to the IRN as it neither confirmed nor refuted the first appellant’s claim that he had no criminal convictions in China. I note that at [94] the Tribunal expressly said the following:

The Tribunal notes that Mr Zhao’s response to the Notice of Intention to consider cancellation under s.109 of the Migration Act 1958 (NOICC), refers to emails between officers to Mr Zhao being the subject of an Interpol Notice which has not been released to Mr Zhao. In the decision record, the Delegate states that, as the Interpol Red Notice is not the subject of non-compliance in the NOICC, it is considered irrelevant in this consideration. The Tribunal also gives no weight to the Interpol Notice as it neither confirms nor refutes Mr Zhao’s claim that he has no criminal convictions in China.

73    Further, as to the first appellant’s contention in relation to what he could have done had the material been known to him, in circumstances where he did not seek to challenge the basis for s 375A attaching to the material, the obligation in s 375A, unlike s 438, did not provide the Tribunal with a discretion to disclose information which was the subject of a certificate. Rather, it prohibited that disclosure. Therefore, and as the Minister correctly contends, the present context is not analogous to cases where a certificate is issued under s 438 and where it may be possible for an applicant to argue for a favourable exercise of one or both of the discretions conferred by s 438(3).

74    Finally on this aspect of the appeal before me, as to the documents concerning the Department’s investigations into the genuineness of the relationship between the first appellant and his former spouse, these had no relevance to the issues arising on the review. Following the Department’s investigations, it concluded that it was in fact satisfied of the genuineness of the relationship to the extent that this formed the basis for the grant of the 801 visa.

75    Grounds 1 and 2 are rejected.

Ground 3 – error as to critical finding of fact

76    The appellants point out that the Tribunal stated (at [82]):

The fact is that there was no independent evidence to corroborate [the first appellant’s] claim that he did not have criminal convictions in China on (sic.) September 2013, or that he currently does not have criminal convictions in China.

77    But they say that the Tribunal was in possession of a document which had not been disclosed to the appellants, being an internal Department email dated 24 July 2014, which stated that the first appellant “does not appear to have been charged, let alone convicted”.

78    The appellants placed heavy reliance upon this 24 July 2014 Departmental email to suggest that the Tribunal had before it favourable information to the first appellant, particularly corroborating his assertion that he had no criminal conviction in China.

79    Putting to one side for the moment whether it was used by the Tribunal, which is highly doubtful, or could have been disclosed to the appellants given s 375A, there are a number of difficulties for the appellants with this suggestion in any event.

80    First, to say that this email was corroborative of anything is a stretch. It is not evidence sourced from China or even hearsay based upon reliable information from China. It is only the expressed belief of an Australian bureaucrat.

81    Second, the belief of the bureaucrat is heavily qualified in terms of “does not appear…”.

82    Third, and even of greater difficulty for the appellants, the expressed belief is all in the context of investigating the forged police certificate said to have been issued on 25 September 2013. The statement “does not appear to have been charged, let alone convicted” cannot be divorced from its context. It is not free-standing let alone corroborative or probative of what the first appellant sought to establish, that is, that this was all corroborative of non-conviction.

83    On another aspect the appellants say that the first appellant had not left Australia since 2005 and therefore could not have been convicted of any offences in China after 2005. Further, he had provided a “clear” Chinese police clearance in 2009. But in this context the Tribunal said it placed “no weight” on the 2009 police clearance.

84    In summary, the appellants say that each of these matters constituted evidence which corroborated the first appellant’s claim not to have any convictions in China in 2013 and/or 2015-6. Therefore they say that the Tribunal was wrong in stating that there was “no independent evidence” in this respect.

85    Moreover they say that the Tribunal treated the lack of corroboration that the first appellant did not have a criminal record in China as a critical, adverse matter in its consideration. They say that this error amounted to more than an error of fact or “errant fact-finding” and relied upon what Logan J said in SZRHL v Minister for Immigration and Border Protection [2013] FCA 1093 at [21].

86    I would reject this ground of appeal.

87    I have already rejected the argument concerning the 24 July 2014 email. And as to the argument that because the first appellant had not left Australia since 2005, he could not have been convicted of any offences in China after 2005, this does not follow.

88    In my view the Tribunal’s finding at [82] was a finding that was open to it. It was open to the Tribunal to find that it could not be positively satisfied that the first appellant either has or does not have a criminal record ([85]). Moreover, the first appellant’s assertion that because he had not left Australia since 2005 he could not have been convicted of any offences in China after 2005 is an attempt at merits review. Further, there was no evidence that the first appellant could not be convicted in absentia.

89    Further, the Tribunal’s findings at [79] and [80] are pertinent. The Tribunal observed that the earlier Notarial Certificates submitted were not evidence that the first appellant did not have criminal convictions at the time the fraudulent Notarial Certificate was obtained or that he does not currently have a criminal conviction.

90    In my view there is no error demonstrated in the primary judge’s reasoning at [133] to [138] on this aspect. Accordingly ground 3 is rejected.

Conclusion

91    The appeal must be dismissed with costs.

Associate:

Dated:    17 September 2019