FEDERAL COURT OF AUSTRALIA

DWR16 v Minister for Immigration and Border Protection [2019] FCA 2021

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely upon the new grounds raised by the further amended notice of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant is 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.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (the FCC) given on 7 March 2018. By that decision, the primary judge dismissed the appellant’s claim for relief in relation to a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refusing the appellant’s application for a protection visa.

2    When the appellant filed the appeal, he did not have legal representation. At the hearing of the appeal, he was represented by Ms Baw of counsel, who appeared in response to a referral by the Court pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). The Court expresses its gratitude to the appellant’s counsel and solicitor for accepting the referral for legal assistance, and for preparing careful and comprehensive submissions.

3    After engaging legal representation, the appellant sought to rely upon entirely new grounds contained in an amended notice of appeal. It is not in issue that the new grounds of appeal were not raised by the application for judicial review before the primary judge. The appellant therefore requires a grant of leave in order to rely upon those grounds.

4    At the hearing on 22 November 2018, counsel for the Minister formally opposed the grant of leave while acknowledging that he could not point to any prejudice as each of the new grounds had been addressed in written submissions. In my view, it is in the interests of justice to grant leave to the appellant to amend the notice of appeal in terms of the amended notice of appeal for reasons I later explain.

5    Towards the end of the hearing, counsel for the appellant sought leave to make a further amendment to the amended notice of appeal. Counsel for the Minister again indicated that the amendment was opposed, but did not have instructions. The appeal was listed for a case management hearing on 11 December 2018, at which counsel for the Minister advised that the objection to make the further amendment to the amended notice of appeal was not pressed. Leave was accordingly granted and a timetable was set down, by consent, for each party to provide supplementary submissions addressing the further amended notice of appeal.

6    The further amended notice of appeal raises three issues, namely, that the primary judge erred in failing to find that:

(1)    the Tribunal’s finding that the appellant’s evidence lacked credibility due to inconsistencies in his evidence was based upon irrational or illogical reasoning (ground 1);

(2)    the Tribunal failed to provide a proper hearing under s 425 of the Migration Act 1958 (Cth) (the Act) in failing to afford the opportunity to the appellant to obtain corroborating material from China (ground 2); and

(3)    the Tribunal failed to consider a claim by the appellant that he had lost his source of income through the appropriation by the Chinese government of his farm without adequate compensation (ground 3).

7    The appellant also relies upon a transcript of the Tribunal hearing annexed to the affidavit of Jodie Ellen Coomber, transcriber, affirmed on 25 July 2018. This affidavit was read on the appeal without objection.

8    For the reasons set out below, the appeal must be dismissed.

2.    BACKGROUND

2.1    The appellant’s claims and the decision of the delegate

9    The appellant arrived in Australia in 2014 as the holder of a short-stay visitor visa (subclass 600). He applied for a protection visa on 13 May 2014 (AB1). I note that the Tribunal incorrectly stated at [11] of its reasons that the appellant applied for a protection visa on 11 June 2014, despite correctly identifying the date at [2]. It was not suggested that anything turned upon this error.

10    The appellant is married and has three children who are minors. His wife and children reside in China.

11    The appellant claimed that he had left China because he was persecuted by the Chinese government when the authorities forcibly appropriated his farm which “was the unique source of [his family’s] income” (AB29). He claimed that when he and his wife visited local authorities with a petition letter in 2012, they argued with the staff. As a result, the appellant claimed that he and his wife were detained by the local police at a detention centre for two weeks where they were given “lessons” by the police beating them and threatening them with further harm if they petitioned again.

12    The appellant claimed that his land was subsequently forcibly occupied by bulldozers which destroyed their crop. After that, he said that he received compensation but it was very low. Further communications with local authorities for more reasonable compensation were said to have been ignored. After visiting a local authority three months after their land had been occupied, he said that the police “dashed” to his home and arrested and detained him again for a month on the charge of “intervene with public function” (AB30). He claimed to have been tortured while in custody and threatened with being tortured to death if he kept behaving in the same way. He said that after his release, he was required to report to the police for re-education every week and that, if he failed to do so, the police would seriously interfere with his personal rights. As a result, he said that he decided to escape overseas and, upon his departure from China, a writ of summons was issued against him by the police because he had failed to report as required. The appellant claimed to fear harm by the police again if he was returned to China.

13    The appellant did not attend his scheduled Department interview on 24 February 2015 or provide any supporting documentary evidence at that time for his claim (Tribunal reasons at [13]). On the same day, the Minister’s delegate refused to grant the appellant a protection visa because he was unable to be satisfied about the credibility of the appellant’s claims as he did not attend the interview and provide further details about his claims (AB49 ff).

14    The delegate’s decision was affirmed by the Tribunal on review.

2.2    The Tribunal’s decision

2.2.1    The matters raised with the appellant at the Tribunal hearing

15    In its reasons, the Tribunal summarised the appellant’s evidence given at the hearing at [15]-[34] and, in particular, at [29] explained that it put various inconsistencies to the appellant which may lead it to consider that he was not telling the truth about the alleged events in China. That information was as follows:

•    in the [appellant’s] written application he said that the first time he went to petition the authorities he was with his wife and they were both arrested, beaten and detained for two weeks and at the hearing he said he was on his own. The [appellant] said that he misunderstood the question. The Tribunal put to him that it had twice clarified that he was on his own when he went the first time. The [appellant] said that his wife was with him but he didn’t think the Tribunal was asking him about family members;

•    in the [appellant’s] written application he said that he was arrested one month after attending the second interview at the city government office when the police came to his home. At the hearing he said he was arrested when he went to the government office. The [appellant] stated that he meant that the police came to his home a month later;

•    in the [appellant’s] written application he said he was issued with a writ of summons at his home in China in … 2014 after he arrived in Australia. At the hearing he told the Tribunal that nothing happened after he departed China. The [appellant] had no response.

(emphasis added)

16    The Tribunal said that the appellant may have additional time to comment or respond to this “information” on the apparent assumption that it was under an obligation under s 424AA of the Act to put these matters to the appellant.

17    The Tribunal also expressed its concerns about a number of other matters, namely:

(1)    the fact that he had claimed for the first time at the Tribunal hearing that his arm had been broken during the second period of detention (Tribunal reasons at [30]);

(2)    the “substantial delay between the receipt of his compensation payment … and his decision to petition authorities again, particularly as his account was that he had been detained for two weeks, beaten and forced to sign an agreement not to petition again four months earlier” (Tribunal reasons at [31]); and

(3)    the fact that the appellant had waited a year after the second incident to apply for protection, during which nothing had happened, appeared to indicate that the appellant did not genuinely fear serious or significant harm during this time (Tribunal reasons at [32]).

18    Further, when asked by the Tribunal what would happen if he returned to China, the appellant said he would continue to petition the authorities to receive additional compensation, despite acknowledging in response to a further question that he would not have any success and would probably be arrested and beaten again but “he had no choice” (Tribunal reasons at [33]).

19    Finally, the Tribunal asked the appellant if there were any other reasons he feared returning to China, to which he responded that there were no other reasons (Tribunal reasons at [34]).

2.2.2    The Tribunal’s findings

20    After identifying two items of country information to which it had had regard (including the Department of Immigration and Border Protection, Background Paper China: Land Expropriation and Compensation, October 2014 (DIBP Background Paper)), the Tribunal then turned to consider its findings.

21    The Tribunal considered that the appellant’s evidence lacked credibility because:

(1)    the Tribunal placed “some weight” on the fact that the appellant did not attempt to obtain a temporary visa for over a year after he claimed to have last suffered harm by the police and claimed that nothing had happened during this period (Tribunal reasons at [43]);

(2)    it also placed “some weight” on the fact that the appellant did not lodge his protection visa application until just before his temporary visa ceased, and did not consider his explanation that his friend “forgot” to advise him on how to lodge an application until 2 months after he had been in Australia to be credible (at [44]); and

(3)    the Tribunal did not consider that the appellant’s explanations (as described at [29] of its reasons and set out at [15] above) accounted for the discrepancies in his evidence which were put to him at the Tribunal hearing (Tribunal reasons at [45]).

22    The Tribunal then turned to consider the specific claims by the appellant to fear harm arising from the demolition of his house and the inadequacy of the compensation which he was paid.

23    The Tribunal accepted that land appropriation, demolition of residences and inadequate payment of compensation are endemic in China, referring to the DIBP Background Paper. Based upon the country information and the appellant’s consistent evidence, the Tribunal also accepted that the appellant’s land was appropriated in 2012 and that he was paid the allegedly inadequate amount in compensation (Tribunal reasons at [48]).

24    However, the Tribunal found at [49] that the appellant had provided “vague and inconsistent evidence regarding his attempts at petitioning the authorities” in a number of respects (which are examined later below in relation to ground 1).

25    Referring back to its finding that the appellant was not a witness of truth, the Tribunal then found that it did not accept his claims to have petitioned the authorities and consequently to have been detained, beaten and threatened by police on the two occasions alleged (Tribunal’s reasons at [50]). Nor did the Tribunal accept that he was required to report to the police station for re-education after his second detention, as he did not make that claim at the Tribunal hearing and said “nothing further happened” (Tribunal reasons at [51]). Furthermore, the Tribunal did not accept the appellant’s claims that if he returned to China he would continue to petition authorities even though he considered he would have no success and may be subjected to harm again (Tribunal reasons at [52]). It was also satisfied that when he left China, he was not of adverse interest to the authorities (Tribunal reasons at [53]). While the Tribunal does not say so in as many words, the substantive effect of its findings must logically be that the appellant has fabricated these central aspects of his claims.

26    The Tribunal therefore concluded that the appellant did not satisfy the criterion set out in s 36(2)(a), or the complementary protection criterion in s 36(2)(aa) of the Act (Tribunal reasons at [56]-[57]) on the basis that:

54. Based on the above findings both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the [appellant] will face serious harm (having regard to the examples provided in s.91R(2) of the Act) as a result of appropriation of his land, or any protests or petitions relating to land appropriation or inadequacy of compensation payments or for any other reason if he were to be returned to China now or in the foreseeable future.

55. Based on the above findings both individually and cumulatively, the Tribunal is not satisfied that there is a real risk that the [appellant] will face significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of appropriation of his land, or any protests relating to land appropriation or inadequacy of compensation payments or for any other reason if he were to be returned to China now or in the foreseeable future.

(emphasis added)

2.3    The decision of the FCC

27    The appellant applied to the FCC for judicial review on 15 December 2016. As the further amended notice of appeal raises grounds that were not raised before the primary judge, it suffices to say that the primary judge rejected the appellant’s grounds on the basis that they effectively sought impermissible merits review (FCC reasons at [7]-[8]), and also found that there was no denial of procedural fairness by the Tribunal (FCC reasons at [17]).

3.    THE APPLICATION FOR LEAVE TO RELY UPON THE NEW GROUNDS RAISED BY THE FURTHER AMENDED NOTICE OF APPEAL

28    The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) as follows:

46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [(2000) 63 ALD 43)]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

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

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

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

See also Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court); and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Murad) at [19]-[20] (Griffiths and Perry JJ).

29    After considering VUAX and Iyer, Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (with whose reasons Conti J agreed) explained that:

165. It is no accident that the ‘practice’ spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.

166. Thus, relevant questions include:

1)     Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

30    Consistently with these principles, in general leave is more likely to be granted where the new issue turns on a point of law or the facts are not in issue: Murad at [20]. In this matter, the critical question is whether there is any substantial merit in the grounds of appeal advanced in the further amended notice of appeal which would render it in the interests of justice to grant leave to raise it on appeal despite these issues having not been raised below.

31    In my view, it is in the interests of justice to grant leave for the appellant to raise these issues. My reasons for reaching this view include: the seriousness of the consequences of this appeal for the appellant; my view that the grounds of appeal have sufficient merit, adopting a reasonably impressionistic view of the new grounds; the fact that the appellant was not represented before the FCC and was unable to advance the argument which counsel now seeks to advance for him; and the lack of prejudice to the Minister by the grant of leave.

4.    ALLEGED ILLOGICAL OR IRRATIONAL REASONING IN MAKING CREDIBILITY FINDINGS (GROUND 1, FURTHER AMENDED NOTICE OF APPEAL)

4.1    The issues raised by ground 1

32    Ground 1 alleges that the FCC erred by failing to find that the Tribunal’s finding that the appellant lacked credibility was illogical. The two bases upon which the ground is advanced are set out in the particulars. First, five discrepancies in the appellant’s evidence upon which the Tribunal relied were said to be minor, trivial, or based upon a misconstruction of the evidence. Secondly, the appellant contended that “[t]he Tribunal failed to consider the full scope of the country information and relied upon it selectively to support the credibility of the appellant’s claims” (further amended notice of appeal at p. 3).

4.2    Relevant principles

33    In support of ground 1, the appellant relied upon the emphasis in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15) on the importance of a decision-maker approaching the assessment of a protection visa applicant’s credibility “fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations”: AVQ15 at [23] (the Court). In particular, the Full Court in AVQ15 endorsed the approach described by James Hathaway and Michelle Foster in The Law of Refugee Status (2nd edition, 2014) at p. 139, explaining that

24. … James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as “a quest to disbelieve” (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. …

34    The Full Court also referred (at [25]) to W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [15] where the Court drew attention to the inevitability of differences in the accounts given by a person as interpreted into English at different times. The Full Court concluded in AVQ15 that:

28. … even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

(emphasis added)

35    Consistently with this approach, Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] (upon which the appellant also relied) emphasised that despite the breadth of the Tribunal’s discretion to assess weight and credibility, those assessments must be made “rationally and logically, and be articulated properly”. In finding at [25]-[26] that the omissions relied upon by the Tribunal in that case did not provide a legitimate articulable basis for finding that the asylum applicant had fabricated aspects of his refugee claims, her Honour approved the approach adopted in the United States Court of Appeals for the Ninth Circuit that minor inconsistencies and trivial errors by an asylum applicant are not a valid ground on which to reject her or his credibility (citing Stoyanov v INS (9th Cir 1999) 172 F3d 731 at 736).

36    No issue was taken by the Minister with these principles.

37    More broadly, the susceptibility of findings as to credit by administrative decision-makers to judicial review in cases such as the present was recently considered by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 (DAO16) at [30]. It is helpful to set out the relevant passages in full as follows:

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135.     … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

               (Emphasis added)

(3)    By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] …, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” …

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …

(citations omitted)

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

38    Finally, in addressing the question of whether the Tribunal’s decision is legally unreasonable, it is important to emphasise that the Tribunal must be taken to have entertained no real doubt about the falsity of appellant’s claims. If the Tribunal had entertained any real doubts, it would have been required to consider in the alternative whether there was a “real risk” that the appellant may suffer serious or significant harm on the assumption that it was wrong in finding that claim to be fabricated: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); and DAO16 at [36] (the Court).

4.3    Were the Tribunal’s adverse credibility findings illogical or otherwise legally unreasonable?

4.3.1    The Tribunal’s consideration of the cumulative impact of its concerns about the appellant’s evidence

39    In the appellant’s submission, the Tribunal’s adverse credibility findings were based upon five alleged discrepancies or implausible accounts in the appellant’s evidence which were minor or trivial or were not inconsistencies at all. The Minister accepted in line with the authorities discussed above that credibility findings are not immune from challenge, such as on illogicality grounds, including relevantly where they are based upon minor or trivial inconsistencies (first respondent’s outline of submissions (ROS) at [11]). However, the Minister submitted that the appellant invites the Court to scrutinise “in isolation each of the matters that, in combination, led the Tribunal to doubt the appellant’s credibility” (ROS at [12]). In the Minister’s submission:

While some of the specific matters referred to by the Tribunal may not, by themselves, have been fatal to the assessment of the appellant’s credit, it was the cumulative effect of these matters that led to the relevant credibility finding. It is artificial for the appellant to now point to the so-called “triviality” of individual findings when those findings were not relied upon by the Tribunal in the manner that the appellant’s complaint would suggest.

(ROS at [14])

40    In my view, the Minister’s submission is correct insofar as the Tribunal expressly found that the appellant’s evidence lacked credibility “for a number of reasons discussed below” (at [42]; emphasis added) which it then proceeded to set out. Similarly, when rejecting central aspects of the appellant’s claims, the Tribunal relied upon the cumulative effect of the perceived inconsistencies and discrepancies in his evidence, together with its assessment of the plausibility of some of his claims and responses to concerns raised by the Tribunal. Nonetheless, the fact that the Tribunal relied upon the cumulative effect of various perceived deficiencies in the appellant’s evidence does not of itself provide a complete answer to ground 1 of the further amended notice of appeal. In line with the authorities earlier discussed, reliance upon the cumulative effect of a number of trivial or peripheral discrepancies to discredit a protection visa applicant may still be illogical or otherwise unreasonable. It is therefore necessary to consider each of the matters relied upon by the appellant.

4.3.2    Particulars (a)(i)-(iv) to ground 1, further amended notice of appeal, focusing upon the Tribunal’s reasons at [49]

41    Four of the five matters identified by the appellant in support of ground 1 concern the Tribunal’s reasons at [49] for finding that his evidence as to his attempts to petition the authorities was “vague and inconsistent”, namely:

… At the hearing the applicant could not identify the office that he approached with his first petition other than it was a council office, his evidence varied about whether he was on his own or with his wife and he stated that despite the fact that he was detained for two weeks, beaten and threatened with further harm he was paid the agreed amount of compensation shortly after he was released from detention. The applicant then said that despite his first experience, he decided four months after the payment of his compensation to petition the government again. At the hearing he stated he was arrested and detained when he went to the government office the second time and in his written statement he stated he was arrested by police one month later in his own home. Following this incident he waited a further 14 months before lodging an application for a visitor visa for Australia.

42    First, the appellant challenges the finding at [49] that “[a]t the hearing the applicant could not identify the office that he approached with his first petition other than it was a council office” on the ground that “this was an oversimplification of the evidence” (appellant’s outline of submissions (AOS) at [13]). In the appellant’s submission, in his oral evidence at the hearing he described the different levels of government which he approached in lodging his first complaint and named the department that it could have been. The appellant relied upon the following passage in the transcript of the Tribunal hearing:

Member: So, you were offered [amount] RMB for three mou of land, and you felt that was too low, is that right?

[Appellant]: Yes.

Member: So, what did you do?

[Appellant]: I lodged a complaint to higher level of government.

Member: Together with your neighbours, or just you on your own?

[Appellant]: Myself.

Member: Okay. And – and, when you say you lodged a complaint, is that with the Office of Letters, which Xing Feng [?] process?

[Appellant]: It’s not the Office of Letters. In the beginning it went to – to someone in the village community, then went to the county.

Member: So, what department or office at the county level did you approach?

[Appellant]: The council of the village and the council of the city.

Member: But, is there a particular department in the council that you had to go when the – at the higher level?

[Appellant]: Could be Office of Letters.

(Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at pp. 8.39-9.21.)

43    Contrary to the appellant’s submission, however, this passage of transcript reveals that the appellant was unable to identify the first office which he approached, putting it no higher than that it “[c]ould be” the Office of Letters as the Tribunal member suggested, despite initially denying this.

44    Nor can it be said that the inconsistency “involved an objectively minor matter of fact” so as to render the reliance upon it by the Tribunal legally unreasonable. The appellant’s alleged petitions were at the heart of his claims and it was therefore open to the Tribunal to give weight to the fact that the appellant could not precisely recall the identity of the first office which he approached with his petition.

45    Secondly, the appellant contended that the finding by the Tribunal at [49] that “his evidence varied about whether he was on his own or with his wife” was incorrect. In his submission, the passage of transcript quoted at [42] above shows that the actual question which the appellant was asked was whether he lodged the complaint together with his neighbours or on his own. That evidence, in his submission, was not therefore inconsistent with the evidence in his written statement (at AB29) that he had visited the Government with the petition letter on the first occasion with his wife. However, that submission does not accord with the evidence which the appellant gave immediately thereafter when the Tribunal member asked directly “[w]ere you there by yourself” to which the appellant answered “Yes” (Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at p. 9.27).

46    The appellant also referred to the failure by the Tribunal member expressly to consider the explanation given by the appellant later in the hearing when asked about this apparent inconsistency in his evidence, namely, that it “[c]ould be my misunderstanding. … My understanding was you wanted to ask me am I go with someone else, not my family member” (Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at p 20.16-20.21). However, the failure by the Tribunal to explain that this explanation was rejected and why does not establish jurisdictional error. The explanation for the inconsistency was not itself a claim or an essential integer of the appellant’s claims and was expressly referred to by the Tribunal in its reasons at [29] in the context of summarising the appellant’s claims made at the Tribunal hearing (cf e.g. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [49]-[54] (the Court)). In these circumstances, the Tribunal did not overlook the evidence. Rather, it can be inferred that the Tribunal did not accept the appellant’s explanation as plausible or credible and, therefore, as material.

47    Thirdly, the appellant submitted that the Tribunal at [49] “appears to infer that even after the appellant was detained and beaten by the authorities, he was still paid the said compensation, so it was unreasonable for him to make a second petition to the authorities; however the appellant had consistently explained that he was paid very little compensation which was his motivation for petitioning the authorities” (further amended notice of appeal, Ground 1, particular (a)(iii)). By way of elaboration, the appellant submitted that:

The Tribunal member has mischaracterised as an “inconsistency” the behaviour of the appellant that he disagrees with based on his own personal value judgment. The Tribunal member has erroneously associated credit to whether it was reasonable for the appellant to modify his behaviour, and stop petitioning the authorities, in order to avoid persecution. This is irrelevant to assessing credit. Making an adverse credit finding against an appellant based on the Tribunal member’s own assumptions of rationality which is at odds with the conditions in the country of origin, is contrary to the careful and thoughtful approach urged by the case law.

(AOS at [18])

48    With respect, the ground does not reflect a fair reading of the Tribunal’s reasons. As the Minister submits, the Tribunal did not suggest that the appellant had given inconsistent evidence on this subject. Nor did the Tribunal fail to understand and consider the appellant’s claim that he considered that the amount of compensation which was offered and paid was too low and unfair, and that it was for this reason that he decided to petition the government again (see e.g. Tribunal reasons at [20]). Rather, read in context, the Tribunal found that it was implausible that a person such as the appellant who claimed to have been detained for two weeks, beaten, threatened with further harm, and paid the compensation, albeit inadequate, would continue to petition the authorities for more compensation (Tribunal reasons at [49]-[50]).

49    Fourthly, the appellant challenges the Tribunal’s reliance upon an apparent inconsistency in his evidence that, on the one hand, the appellant said at the Tribunal hearing that he was arrested and detained when he went to the government office on the second occasion while, on the other hand, in his written statement he had claimed that he was arrested by police one month later in his own home (Tribunal reasons at [49]). The appellant submits that the Tribunal’s conclusion is based on an oversimplification of his evidence given that his apparently inconsistent oral evidence “may have been an abbreviation of what ultimately happened to him when he made the second complaint. He may have omitted the detail about going home first, and simply expressed the part about being beaten by the police again, however he did clarify later that was what happened” (AOS at [22]). In this regard, the appellant referred to the authorities cautioning that it is inevitable that each account given by an asylum seeker with the assistance of an interpreter will be slightly different, and the obligation on the Tribunal to act in a way that is fair and just before finding that an inconsistency exists (see above at [34]).

50    It is apparent that the appellant does not take issue with the existence of the apparent inconsistency in this respect. That being so, this was, as the Minister submits, a matter to which the Tribunal was entitled to have regard in reaching a view that the appellant’s claims were not credible. This is particularly the case where the apparent inconsistency relates to central aspects of the appellant’s claims to fear harm.

4.3.3    Particular (a)(v) to ground 1, further amended notice of appeal, focusing upon the Tribunal’s reasons at [51]

51    In the fifth place, the appellant challenged the finding by the Tribunal at [51] that “[t]he Tribunal does not accept the claims in the applicant’s written statement that he was required to report to the police station to have ‘education’ once a week after his detention in January 2013 as he did not make this claim at the Tribunal hearing and said nothing further happened.” In support of this ground, the appellants submitted that:

… when the oral evidence is read in context, fairly and as a whole, the appellant was highlighting the events of when he was arrested, detained and beaten by the police – those are naturally the strongest memories of what happens when he complained. The fact that he omitted talking about having to report to the police does not necessarily mean that he was dishonest in making that claim. The fact that it was raised in his written statement, but not mentioned in the oral hearing does not mean that he was untruthful about his requirement to report. Furthermore, having regard to the appellant’s case as a whole, the alleged inconsistency is on a matter which [is] at the periphery. Again, the caution and danger stressed by the authorities in reaching adverse credibility conclusion [sic] based on so-called inconsistencies and the need for fair and just conduct has been overlooked by the Tribunal.

(AOS at [24])

52    It may readily be accepted that the fact that an applicant for asylum omits an aspect of her or his claims when giving an account on a particular occasion which was referred to in evidence on another occasion does not necessarily mean that the applicant was dishonest. To the contrary, as the appellant contends, the Tribunal must approach the assessment of evidence in a careful, thoughtful, fair and reasonable manner bearing in mind the kinds of considerations to which the Full Court in AVQ15 referred and the obligation to consider alternative scenarios if it has any real doubt about whether a claim was fabricated.

53    However, the claim by the appellant that he was required to report to the police for re-education every week was not at the periphery of his claims. It was central to them. He claimed to fear harm if returned to China because of his failure to comply with that requirement and alleged that the writ of summons had been issued against him by the police because of this failure. Furthermore, the Tribunal did not merely rely upon his failure to refer to this aspect of his claims at the Tribunal hearing. It also relied upon his evidence that nothing further happened, which it construed as inconsistent with his earlier evidence about the imposition of the reporting requirement. In those circumstances, it cannot be said that the Tribunal acted in an irrational or illogical manner by taking these aspects of the appellant’s evidence at the Tribunal hearing into account in rejecting his claim to have been subjected to such a requirement.

4.3.4    Particular (b) to ground 1, further amended notice of appeal: allegedly unreasonable selective reliance by the Tribunal upon the DIBP Background Paper

54    Finally, an additional particular was added to ground 1 by the grant of leave on 11 December 2018, namely:

b. The Tribunal failed to consider the full scope of the country information and relied upon it selectively to support the credibility of the appellant’s claims.

55    The appellant relied, in support of particular (b), upon what was said to be the selective or partial use by the Tribunal of the DIBP Background Paper. The DIBP Background Paper was received into evidence as exhibit A1 at the hearing of the appeal on 22 November 2018.

56    It must be accepted, as the appellant submitted, that a decision-maker’s conclusion on issues of credit may be impacted upon by country information supporting the plausibility of the alleged event occurring (appellant’s outline of submissions to the appellant’s amended notice of appeal (supplementary AOS) at [2]). In this regard, the appellant cited the following passage from Hathaway and Foster’s respected text, The Law of Refugee Status (2nd ed, 2014) at p. 139 explaining that “credibility assessment is most commonly conducted on the basis of an assessment of (1) plausibility, (2) relevant knowledge, (3) demeanor, and (4) consistency of testimony. Questioning the truthfulness of evidence based on its plausibility will sometimes be a fruitful exercise.” It will be recalled that the Full Court referred with approval to this passage in AVQ15 at [24]: see above at [33]. The authors then correctly cautioned at p. 140 that:

Even the most careful assessment of plausibility about risks in a foreign country must be undertaken with real humility, since the decision-maker’s understanding of plausibility may well be grounded in a view of rationality at odds with circumstances in the applicant’s country of origin.

57    In the present case, the appellant submitted that in making the adverse credibility finding, the DIBP Background Paper “was relevant because as stated by Hathaway and Foster, consistency in the evidence is but one of the factors in the assessment of credibility” (supplementary AOS at [8]). More specifically, the appellant submitted that the DIBP Background Paper was relevant “to applying moderation to any undue influence of only one of the factors (in this case consistency) in assessing credibility” and had been used in part to support the plausibility, and therefore the credibility, of part of the appellant’s claim, namely, that his land was appropriated for inadequate compensation (supplementary AOS at [9]-[11]). However, the appellant submitted that the use of this country information was legally unreasonable because it had been used selectively in that the Tribunal had failed to refer also to those parts of the DIBP Background Paper which supported the other aspects of the appellant’s claim, namely, to have been arrested, detained and beaten by the authorities when he attempted to petition them (supplementary AOS at [10] and [12]). In short, the appellant submitted that:

Without any explanation given by the Tribunal, the appellant is left unable to comprehend the reasoning for the Tribunal to rely only on part of the DIBP [Background] Paper but not all of it to assess his claim. The decision to cherry pick the country information by the Tribunal lacks any evident and intelligible justification in the sense of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Accordingly, this leads to a result that is unreasonable or plainly unjust. It is also contrary to an approach that is careful, fair and reasonable in assessing credibility.

(supplementary AOS at [14])

58    The DIBP Background Paper is expressed at a high level of generality in common with much country information used in refugee status determinations, as the Minister pointed out. It did not purport to address the appellant’s individual claims. Nonetheless, as the Minister also submitted, it provided information capable of supporting findings that relevantly, minimal compensation may be paid for land expropriation taking place in China, and that Chinese residents who have petitioned or protested in response to the expropriation of their land may have been subjected to harsh and repressive acts by the government. In particular, at p. 23 of the DIBP Background Paper, the authors state that:

… recent comments from the Chinese government have pointed to a desire to reform land expropriation and compensation practices. The reaction by authorities to individual cases has been less positive with protests against land expropriation resulting in imprisonment, violence and allegations of torture. Additionally, reports accuse Chinese local authorities of using force and other methods of coercion to remove citizens from their properties against their wishes. Sources also noted claims that imprisonment (in legal and unofficial or ‘black’ gaols) and forced psychiatric detention is used against some petitioners.

59    The report also explained at p. 25 that petitioners have been detained on charges of disturbing public order (or similar violations) and that “[d]isturbing the public order is a broadly defined charged used arbitrarily by the authorities to suppress petitioners.”

60    As such, as the Minister accepted, the DIBP Background Paper might well be thought to support the plausibility of the appellant’s claims to have been the victim of land expropriation, to have petitioned the government, and to have been harmed as a result (first respondent’s outline of written submissions on the appellant’s amended notice of appeal (supplementary ROS) at [5]). However, the Minister drew a distinction between: plausibility, i.e., whether the events in question could have occurred on the one hand; and credibility, i.e., whether the appellant is telling the truth about what happened to him, on the other hand. Thus the Minister submitted that “[e]ven though findings on plausibility may, in particular cases, potentially form part of the credibility assessment process, the adverse credibility findings made by the Tribunal did not relate to, and did not require an assessment of, the plausibility of those matters discussed in the DIBP [Background] Paper” (supplementary ROS at [6]).

61    I agree with the Minister’s submission. The Tribunal did not reject the appellant’s claims to fear harm following the expropriation of his land on the basis that his claims to have petitioned the Chinese authorities and to have been detained, beaten, and threatened with further harm as a result, were inherently implausible. Rather, the Tribunal found that the appellant’s evidence regarding his attempts at petitioning the authorities was vague and inconsistent for reasons which it articulated and that it was implausible that a person who had suffered such treatment and threats would continue to petition the authorities despite accepting that it was futile to do so. It follows that it can be inferred that the DIBP Background Paper, insofar as it supported the plausibility of the appellant’s claims to fear harm by reason of petitioning the Chinese authorities about the expropriation of his land, was not referred to by the Tribunal because these parts of the DIBP Background Paper were not relevant to addressing the particular concerns which the Tribunal had about the appellant’s evidence on these critical aspects of his claims.

4.4    Conclusion on ground 1, further amended notice of appeal

62    To conclude therefore with respect to ground 1, it may be accepted (as did the Minister (ROS at [24])) that considered in isolation, the matters to which the Tribunal had regard would not have sufficed to provide a rational, logical basis for dismissing the appellant’s claims. It may also be accepted that even when they were considered cumulatively, another decision-maker may have disagreed with the Tribunal’s conclusion that the appellant had fabricated the central aspects of his claims to fear harm. However, in line with the authorities, even strong disagreement does not suffice to establish that the Tribunal’s findings are legally unreasonable. In this case, for the reasons I have given, it was open to the Tribunal to construe the evidence in the way that it did and to reject the appellant’s claims having regard to the cumulative deficiencies identified by it in his evidence. It follows that ground 1 must be dismissed.

5.    ALLEGED DENIAL OF PROCEDURAL FAIRNESS AND BREACH OF S 425 OF THE ACT (GROUND 2, FURTHER AMENDED NOTICE OF APPEAL)

63    Ground 2 alleges that the FCC ought to have found that the Tribunal fell into jurisdictional error by failing to provide a proper hearing under s 425(1) of the Act.

64    Section 425(1) provides that “[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The Full Court held in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [33] that s 425 “indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture …”. It followed, the Court explained, that:

36. It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.

37. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. …

65    In support of ground 2, Ms Baw for the appellant relied in particular upon the decision in SZRUR v Minister For Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445. In that case, the Full Court unanimously upheld the submission that the appellant was denied procedural fairness in the FCC in circumstances where he was self-represented, had no facility in English or with the Australian legal system, and the primary judge had not explained that the Court could not act on allegations of fraud made by him from the bar table in the absence of evidence. In short, the Full Court held that the primary judge had failed in the circumstances to ensure that the appellant had sufficient information about the practice and procedure of the FCC so as to ensure a fair trial. As, for example, Allsop CJ held at [53], “[t]he appellant was not put into the witness box. He was not told that to make out a case of fraud he had to deal with fundamentally important issues … including the possibility of obtaining the presence of any migration agent for evidence in the court. With respect, it was not appropriate to simply hear him from the bar table and dismiss his case.”

66    Ms Baw submitted that whilst the Tribunal is not a court:

… it is bound by analogous principles to afford procedural fairness to an unrepresented asylum seeker with no English language ability, no legal training and no knowledge of the Australian legal system, especially where in the Tribunal is by s.425 of the Act to reach a decision only after the applicant has had a proper opportunity to be heard by giving evidence and present arguments.

(AOS at [27])

67    The appellant submits that the Tribunal failed to comply with these principles by failing to provide him with an opportunity to obtain a document from China in which the appellant agreed not to petition the government again and which he said was signed by him after his second arrest (Tribunal reasons at [23]). The issue arose at the Tribunal hearing in the following exchange:

Member: Were you charged with anything the second time?

[Appellant]: No.

Member: Did you have to sign a document saying you would not petition the government?

[Appellant]: Yes.

Member: Did they give you a copy of that, or did they just keep it?

[Appellant]: I couldn’t remember.

Member: I think you would have remembered if you had a document which you signed which – in which you agree not to – not to petition the government again.

[Appellant]: I think I have one.

Member: Okay. You think you might have one back in China?

[Appellant]: Yes, in China.

Member: So, when the Department refused your visa did you think of asking your wife to send that document to show me at the Tribunal?

[Appellant]: I forgot. I think we – we ask.

Member: Well, if I – if I was applying for protection in another country I would try and get as much documents as I could to support my claims. Given you could be deported, I would have thought it was pretty important to try and get that document, and not just forget. Do you have any comments about that?

[Appellant]: No, I don’t have comments.

(Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at pp 13.35-14.24.)

68    In submitting that he had not been afforded an opportunity to obtain the document in question, the appellant referred in particular to the letter (at AB65-66) from the Tribunal dated 20 October 2016 to the appellant inviting him to appear before the Tribunal to give evidence and present arguments. Specifically, the appellant relied upon the fact that the letter did not require him to bring any documents on which he might rely with him to the hearing or warn him that if he did not do so, that may be held against him by the Tribunal in reaching its decision.

69    In my view, the circumstances in this case are distinguishable from SZRUR and it cannot be said that the appellant was not afforded a real and meaningful invitation to present his case.

70    First, the onus lay upon the appellant to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). It was therefore for the appellant to lead any evidence which he said supported his claims.

71    Secondly, the letter from the Tribunal dated 25 March 2015 (at AB61) to the appellant acknowledging receipt of his application for review expressly stated that “[i]f you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.” As such, the appellant was put on notice from the outset of the need to provide any material on which he relied to the Tribunal as soon as possible. Furthermore, the letter dated 20 October 2016 advised that the appellant should use the enclosed “Response to hearing invitation – MR Division” form to attach relevantly “any new information which you wish us to consider” and further advised that any documents sent to the Tribunal should be in English or translated by a NAATI accredited translator (at AB65). As such, in my view the appellant was clearly on notice that he needed to provide any documents in support of his application to the Tribunal as soon as possible and in English.

72    Thirdly, while the appellant’s migration representative was not present at the hearing, he had a migration agent acting for him in relation to his review.

73    Fourthly, at the hearing on 4 November 2016 the Tribunal advised the appellant that he could request a short adjournment to comment or respond in writing to the information put to him (Tribunal reasons at [29]; Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at pp. 3.19-21 and 20.7). Given that the member indicated at the end of the hearing that she would give the decision “in the next week” (ibid at p. 22.8) and that the decision was not handed down until 18 November 2016, there was a window of opportunity in which the appellant might have sought to put further documents before the Tribunal, if he had so wished.

74    In the fifth place, the appellant did not in any event request additional time within which to obtain and provide a copy of the document.

75    Finally, it is true that at the hearing the Tribunal member expressed disbelief at the appellant’s evidence that he forgot to ask his wife to send the document in question and gave the appellant an opportunity to comment upon that view of the evidence. Ultimately, however, the Tribunal’s reasons demonstrate that it did not take the appellant’s failure to obtain the document and give it to the Tribunal into account in assessing his credibility and rejecting his claims.

76    It follows that ground 2 must be dismissed. The appellant has failed to establish that the invitation to the Tribunal hearing was a “hollow shell” because he had no real opportunity to prove his claims, and the appellant’s failure to produce the document was not material in any event to the Tribunal’s decision.

6.    ALLEGED FAILURE TO CONSIDER A CLAIM (GROUND 3, FURTHER AMENDED NOTICE OF APPEAL)

77    Ground 3 alleges that the FCC failed to find that the Tribunal fell into jurisdictional error by failing to consider a claim said to be relevant to the appellant’s claim for complementary protection under s 36(2)(aa) of the Act. Particulars of ground 3 are set out in the further amended notice of appeal as follows:

a.    The appellant’s land in China was the unique source of income for him and his family.

b.    The confiscation of the appellant’s land and inadequate compensation by the Chinese government affected his livelihood.

c.    This claim clearly arose from the material before the Tribunal; and the Tribunal failed to consider it in relation to assessing complementary protection.

78    Section 36(2)(aa) provides for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:

… in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

79    It is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or claims that are apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42] (Allsop J, as his Honour then was).

80    These principles were considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE). In that case, the Full Court (French, Sackville and Hely JJ) at [45] identified two elements as key to demonstrating whether a Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely:

If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material …

81    Their Honours emphasised that “[t]his is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision” (at [45]).

82    A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] (the Court); see also e.g. NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). It follows that a conclusion that a decision-maker has failed to consider a claim not expressly advanced is “not lightly to be made”: NABE at [68].

83    The appellant submitted that he had been a farmer and the farming of his land was his sole source of income for him in his family. In his submission, when the Chinese authorities appropriated his land, “he lost his source of income and his complaint was that he was seriously inadequately compensated for the loss of his livelihood. That claim clearly arose from the material before the Tribunal but it failed to consider it in assessing complementary protection” (AOS at [32]).

84    It was not an issue that no claim to this effect was considered by the Tribunal. Furthermore, as the Minister accepted, it is true that the allegation that the Chinese authorities appropriated the appellant’s land and provided him with inadequate compensation was the alleged catalyst for the harm said to be feared by the appellant and in this sense may be said to lie at the heart of the issues which he raised before the Tribunal.

85    However, as the Minister also submitted, the appellant did not make any claim that he met the criteria for a protection visa on the basis of his consequential inability to earn a livelihood. Rather, the evidence given was that he had received a relatively substantial, although allegedly inadequate, sum of money for the appropriation and that his wife was presently being supported by her father in China.

86    At the hearing, the Tribunal primarily focused upon the appellant’s claim to have been harmed in the past as a result of his attempts to petition the authorities. Towards the end of the Tribunal hearing, the Tribunal member asked “[w]hat do you think would happen if you returned to China now?”, to which the appellant responded:

[Appellant]: They may arrest me again.

Member: Why would they arrest you again if you haven’t petitioned the government?

[Appellant]: Hard to say. I’m very fearful of that.

…

Member: Okay. It seems to me that, from what you’ve told me, you were arrested when you tried to lodge complaints or petitions with the government.

[Appellant]: Yes.

Member: If you – if you did not do that why would they arrest you again?

[Appellant]: Yes.

Member: Would you keep trying to petition the government for more money, or what?

[Appellant]: I want to do that.

(Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at pp. 18.31-19.15.)

87    Importantly, after further exploring that claim for a short time, the Tribunal asked “[i]s there anything else you wish to tell me about your claims for protection?”, to which the appellant simply responded “No” (Transcript, exhibit JEC1 to the affidavit of Jodie Ellen Coomber at pp. 22.1-22.4). As the Minister submitted, in essence the appellant’s responses were to the effect that he feared harm if returned to China because he desired to continue to petition the government concerning the inadequate compensation for his land and that this was the only basis on which he feared harm.

88    It follows that no claim was made expressly or arose sufficiently from the evidence as to require a reasonably competent Tribunal to appreciate a claim that the appellant feared harm by reason of being deprived of the ability to make a living in China. Ground 3 must therefore also fail.

7.    CONCLUSION

89    For these reasons, the appeal should be dismissed with costs.

Associate:

Dated:    2 December 2019