Federal Court of Australia

BXL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 324

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

SC DERRINGTON J

Introduction

1    The appellant, a 70 year-old citizen of China, applied for a protection visa on 27 January 2016. That application was refused by a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 31 January 2017. On 4 April 2019, the Administrative Appeals Tribunal affirmed the Delegate’s decision. Subsequently, by Orders made and Reasons delivered on 28 April 2020, the Federal Circuit Court (FCC) dismissed the appellant’s application for judicial review of the Tribunal’s decision. This is an appeal from that dismissal.

2    The appellant was self-represented at the hearing before this Court and presented his submissions through an interpreter. He had been represented previously by a migration agent at the first and third hearings before the Tribunal, but not the second (Reasons at [8]). His notice of appeal from the FCC was prepared and filed on 18 May 2020 by solicitors acting on his behalf at that time. The notice of appeal raises three grounds of appeal as the basis for setting aside the judgment of the FCC:

1.    The primary judge erred (at reasons at [28]) in finding that had the Tribunal accepted the applicant’s claims, it would not have made adverse findings. That was not open, logical or rational.

2.    The primary judge erred (at reasons at [28]) in making an inference that the Tribunal below simply did not accept the evidence of the applicant. This inference was not reasonably open for the primary judge to make. It was not logical or rational.

3.    The primary judge erred (at reasons at [34]) in that it was held that the Tribunal was entitled to reject and did in fact find that the “future” claim should be rejected. In fact, the Tribunal failed to consider the applicant’s future claim and the primary judge was in error in failing to so find.

3    The appellant’s solicitors filed a notice of intention to cease to act on 10 March 2022. Nevertheless, it appears that the appellant continued to receive some assistance from his lawyer, who he described as his ‘friend’, in the form of a document entitled ‘Brief to advice – Observations by the Appellant’s Lawyers’ and which indicated it had been prepared by ‘Grace Zou, Solicitor for the Appellant’. That document was emailed to my Chambers and to the Solicitors for the Minister the evening before the hearing of the appeal. It purports to address the grounds of appeal raised in the notice of appeal. The appellant made no reference to the document but, on being asked about its significance, indicated that it was supplementary to the oral submissions he wished to make. The Minister did not object to the document. In what seemed somewhat unorthodox given the filing of the notice of intention to cease to act and the preparation of an outline of submissions, Ms Zou was present in the back of the Court for the duration of the appeal but did not appear for the appellant.

4    The appellant’s oral submissions were not directed to any of the grounds of appeal articulated in the notice of appeal. Rather, they focussed on changes to the appellant’s circumstances which he asserted included the issuance of an INTERPOL Red Notice, the freezing of his assets in China in 2018, and a data breach within the Department of Immigration such that his claims and documents either have or will be leaked to officials in China. The appellant was also at pains to articulate what he described as the apparent indifference of the decision-makers below to the threats he faces if he returns to China and Australia’s obligation to protect him under the ‘United Nations’ ... core attitude towards human rights’. The appellant argued that the ‘final decision from the previous proceedings … [is] against the spirit of contract’ and also ‘against the original meaning of [the] legislation’ and contended that this Court should ‘not ignore such a violation of this concept [by] only focusing on some small level operational process’.

5    As will already be apparent, at least from the appellant’s perspective, the process he initiated in January 2016 by applying for a protection visa has taken an inordinate amount of time. It is unsurprising that, over the course of the past six years, the appellant’s circumstances are said to have changed. Nevertheless, these proceedings are limited to reviewing whether the decision made by the Tribunal on 4 April 2019, on the basis of the evidence and submissions put by the appellant between January 2016 and 26 March 2019 (being the date of the appellant’s latest oral evidence before the Tribunal) was within the boundaries of the statutory power conferred on the Tribunal, and that the FCC was correct to so hold. To the extent that the appellant asserted in oral submissions that his financial circumstances have changed drastically since action against his assets and bank accounts were taken by unidentified Chinese authorities in 2018 and 2019, it may seem somewhat artificial that these proceedings remain focussed on the evidence as it stood before the Tribunal. As the appellant put it during his oral submissions, ‘I don’t understand why lawyers of the opposite side and also delegates from the courts still use this fact of my – my money, in 2016, to support their arguments in 2020’. It is unfortunate that the effluxion of time results in what might appear to be an unsatisfactory process before this Court and one which does not permit the appellant to agitate new claims on the basis of asserted facts that were not before the Tribunal.

Relevant legislative provisions

6    In relation to protection visas, generally and in the circumstances of this case, it is important to keep in mind the structure of the mandated power of the Minister under s 65 of the Migration Act 1958 (Cth) to grant visas. It provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

7    Section 36 sets out the criteria which must be met for the purposes of the granting of a protection visa, including:

36    Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

8    Relevantly for present purposes, subsection 2 provides:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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;

…

9    Section 36(2)(a) uses the word ‘refugee’, which is defined by s 5H:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality — is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

…

10    The expression ‘well-founded fear of persecution’ as it is used in s 5H is defined by s 5J, which provides, inter alia:

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution;

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where denial threatens the person’s capacity to subsist.

11    It follows that, for the granting or refusal of a protection visa under s 65, the Minister must be satisfied (or, for refusal, ‘not [be] so satisfied’) of a number of matters, including that the applicant meets the definition of a refugee or the complementary protection criteria.

12    In Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 429, McHugh J said of the ‘real chance’ test:

Courts, writers and the U.N.H.C.R. Handbook agree, however, that a “well-founded fear” requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant’s fear? In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear. The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.

The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he well be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.

The review pathway

13    A person who is dissatisfied with a decision of the Delegate has the right to a merits review of that decision by the Tribunal. In conducting such a review, the Tribunal is required to conduct a proper review of the decision of the Delegate and, in this case, a review of the proper application of the refugee test.

14    The principles relevant to the conduct of a proper review were noted by the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (emphasis in the original):

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

    …

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)        such a finding is not to be made lightly (NABE at [68]);

(b)       the fact that a claim might be said to arise from materials is not enough (NABE at [68]); 

(c)       to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37           While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it. 

38           Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)   while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)   understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

15    A person who is dissatisfied with a decision of the Tribunal may seek judicial review before the FCC. It is, however, important to understand that it is no part of FCC’s jurisdiction to undertake a merits review of the decision. The role of the Court is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [327].

16    An appeal lies to this Court from a decision of the FCC under s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and is an appeal by way of re-hearing. The Court is required to have regard to the evidence given in the proceedings out of which the appeal arose (FCA Act, s 27). No application was made to introduce further evidence.

The decisions below

Before the Delegate

17    The appellant couched his primary claim to fear harm on his return to China as stemming from his expulsion from the Chinese Communist Party (CCP) in 2015, on the basis of false allegations of misappropriating public property and funds, for which no criminal charges were ever laid, and the consequent cancellation of his retirement benefits (including his health insurance and pension). Specifically, the appellant’s claims were summarised by the Delegate as follows:

1.    All his retirement and health care benefits have been cancelled by the provincial authorities;

2.    In a coordinated campaign, Chinese authorities and media depicted him up front as a criminal and dishonest person without giving him an opportunity to defend himself and protect his dignity;

3.    These accusations also affected his relatives and contributed to his father’s demise;

4.    The CCDI keeps collecting adverse information in order to initiate his prosecution;

5.    If he returns to China he will face prosecution without a proper legal defence, torture to extract false confessions and severe punishment such as long-term imprisonment in a cruel and inhuman environment.

18    The Delegate was satisfied that the appellant fears persecution for reasons of political opinion (s 5J(1)(a)) and that the reason of political opinion is the essential and significant reason for the feared persecution (s 5J(4)(a)). The Delegate was also satisfied that the feared persecution involves serious harm to the appellant (s 5J(4)(b)) and that it involves systematic and discriminatory conduct (s 5J(4)(c).

19    The Delegate was not satisfied, however, that the appellant’s fears were well-founded. Appropriately, the Delegate purported to apply the ‘real-chance’ test as set out above in Chan, a test which is consistent with Australia’s obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). The Delegate’s reasons for not being satisfied that the appellant’s fear of persecution was well-founded may be summarised as follows:

    Whilst accepting that the appellant might have been targeted by the Central Commission on Discipline Inspection (CCDI) as one of the ‘naked officials’ (government officials with family members residing permanently abroad), there was insufficient information to conclude whether retired state officials also fell under this category.

    The harm he had thus far suffered was relatively minor and did not amount to serious persecutory harm.

    His expulsion from the CCP was on legitimate grounds under the CCP Constitution. He had not been prevented from leaving China on multiple occasions after his retirement. Although he claimed to have been interviewed by the CCDI on two occasions, he was not subjected to torture, accused of any wrong doing, or otherwise punished and retained his liberty. His passport was not cancelled.

    He obtained a ‘clean’ police certificate in 2015 which suggested that whatever investigation the CCDI conducted, it was finished with imposition of the maximum disciplinary penalty – expulsion from the CCP. No criminal charges were laid.

    The claims that his son and wife were affected by his investigation were untenable in light of their subsequent travel movements.

    Chinese authorities have never approached the Australian government seeking the appellant’s extradition, nor did they request he be placed on the Interpol’s alert list. There is nothing to suggest that any State organ (apart from the CCDI, who no longer has jurisdiction over him since he ceased to be a member of the CCP) has ever commenced an investigation of the appellant nor that he would face a real chance of being arrested and imprisoned on return to China.

20    Consequently, the Delegate found that the appellant was not a refugee as defined in s 5H and therefore the criterion in s 36(2)(a) of the Migration Act is not satisfied.

21    Further, the Delegate was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act. Specifically, although the Delegate found that the appellant’s claims to fear of being arrested on trumped up charges and of being tortured to obtain a false confession, together with his fear of being unable to sustain a living because of the cancellation of his retirement benefits, is ‘significant harm’ within the meaning of s 36(2A) of the Migration Act, the Delegate was not satisfied that there was a ‘real risk’ of being subjected to serious harm if he returned to China. The Delegate relied on the same matters that had led to the previous finding that the appellant’s fear of harm was not well-founded and, in relation to his fear of being unable to sustain a living, found that even in the absence of his cancelled retirement benefits, the appellant’s financial situation was ‘far from being scant’. The appellant’s assets included approximately $200,000 in an Australian bank account, approximately USD 50,000, RMB 700,000 and HKD 150,000 in various bank accounts in Guangzhou; a jointly owned (with his wife) 58 sq m apartment in Guangzhou; two other homes rented out for a rental income of approximately $2000 per month. He was also able to rely on the support of his son who had sponsored both the appellant and his spouse for Contributory Parent visas.

Before the Tribunal

22    The appellant’s primary claim to fear harm was based on his contention that the Chinese authorities would take adverse action against him on his return to China by charging him with criminal offences (which he had not committed) and torturing him to procure confessions. The appellant contended that the cancellation of his retirement benefits was indicative of the authorities’ past desire to do him harm which, in turn, was indicative of their likely desire to cause him harm of the type alleged in the future were he to return to China. This was referred to by the primary judge as the ‘Future Claim’.

23    The appellant’s legal representative provided the Tribunal with four sets of written submissions and the appellant gave oral evidence at three hearings before the Tribunal, on 4 September 2017, 23 November 2017 and 26 March 2019.

24    On review of the Delegate’s decision, the Tribunal concluded:

82.    Taking into consideration all of the circumstances of the case, the Tribunal is not satisfied that there is a well-founded fear of persecution. Pursuant to s.5J(1)(b) of the Act “the person has a well-founded fear of persecution if … there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a)”. The Tribunal does not consider that there is an objective real reason for the applicant’s fear of persecution. The applicant has not been pursued by the Chinese authorities since his arrival in Australia. The applicant was investigated in China between his retirement in 2012, and his departure for Australia in 2014. On his own evidence he was not subjected to torture or detained. The applicant was allowed to leave China, and his passport neither ceased nor was cancelled, in fact it has been allowed to lapse. County information suggests that if the Chinese authorities wished to pursue the applicant as claimed he would have been detained and not allowed to leave China. Furthermore, the Applicant was able to obtain a police clearance in August 2016.

…

84.    The Tribunal also notes that the applicant and his son, have claimed that members of the family, including the applicant’s wife, have been prevented from leaving China. In the absence of any supporting evidence, or further explanation as to why members of the family have been prevented from leaving China, the Tribunal found the evidence unconvincing and places little weight upon those claims.

85.    Furthermore, the Tribunal notes that the applicant stated at the hearing that his wife was under surveillance and being persecuted. The applicant also stated at the hearing that he thought the authorities would not be able to prevent his wife from obtaining a partner visa, if he obtained his protection visa, as she had done nothing wrong. Given the contradictory nature of this evidence the Tribunal does not accept that the applicant’s wife is under surveillance or being persecuted as suggested.

86.    The Tribunal has concerns about the applicant’s version of events of 23 April 2014 [being claims as to why he left China then]. The Tribunal considers that the applicant has fabricated or exaggerated his claims in that regard in order to bolster his application for protection.

87.    The applicant claimed that the sporadic news clippings were evidence of “persecution”. In light of country information, that the Chinese authorities heavily censor news in relation to corruption, and that if they wish to pursue persons subject to allegations, they actively do so. The Tribunal does not consider media articles of the number and type referred to as amounting to persecution. At hearing, the applicant relied on a translation of a news article which referred to the applicant and his son in relation to the purchase of mines, but which clearly stated “there is still no hard evidence to prove whether [the applicant] or his son had inappropriately benefited from this investment.” Such an article suggests investigations would need to be carried out and hard evidence obtained, and is thus difficult to objectively, or at all, characterise as persecutory.

Does Australia have protection obligations to the applicant under the refugee criterion?

88.    Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his actual or imputed political opinion or membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonable foreseeable future. Therefore, the Tribunal finds that the first named applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

25    Similarly, the Tribunal found that the applicant did not satisfy the criterion in s 36(2)(aa) of the Migration Act (Tribunal’s reasons at [92]).

Before the FCC

26    In his application for judicial review of the Tribunal’s decision, the appellant contended that the Tribunal failed to consider his claims in that it ‘did not give proper, realistic and genuine consideration to whether deprival of pension, health insurance and other retirement benefits was serious and/or significant harm, and whether this deprival indicated future greater harm’. It was contended that, in this way, the Tribunal had failed to carry out its statutory task to review the delegate’s decision and so fell into jurisdictional error. This was the sole ground of review.

27    The primary judge held that the appellant had failed to establish jurisdictional error on the part of the Tribunal (Reasons at [42]).

Appeal Grounds 1 and 2

28    Grounds 1 and 2 are considered together. The finding and the inference challenged by Grounds 1 and 2 relate specifically to what the primary judge referred to as the ‘Past Claim’ – being the claim that the past cancellation of the appellant’s entitlements following his expulsion from the CCP in 2015 supported a finding that he qualified for protection pursuant to either or both of s 36(2)(a) or s 36(2)(aa) of the Migration Act.

29    Before the primary judge, the appellant contended that ‘[t]he Tribunal did not give proper, realistic and genuine consideration to whether deprival of pension, health insurance and other retirement benefits were serious and/or significant harm’. The primary judge held (Reasons at [29]):

it is clear that the Tribunal’s findings were such that the applicant’s claims that he would not be able to subsist should he be returned to China were considered, and weighed up, in the light of all of the other evidence before the Tribunal.

30    The appellant challenges the primary judge’s finding (Reasons at [28]) that ‘If the Tribunal had accepted the appellant’s claims that he would have been unable to subsist if he returned to China [the inference being that the Tribunal overlooked that claim] it would not have made the finding adverse to the appellant that there was no real chance that the applicant would be persecuted for any of the reasons in s 5J of the Act’. The appellant contends that such a finding was not open, logical or rational.

31    That finding must be considered in context. It was made in the specific context of considering whether the Tribunal had adequately dealt with the appellant’s claim that the cancellation of his entitlements ‘threatens his capacity to subsist’ within the meaning of s 5J(5)(d) of the Migration Act. It is a finding made ‘along the way’ to the ultimate finding in [29] and goes no further than to state the obvious proposition that if the Tribunal had accepted the appellant’s claim to be unable to subsist in China, that would have engaged the notion of ‘serious harm’ within s 5J(5)(d)). There was nothing illogical nor irrational about the finding.

32     Immediately prior to that finding, the primary judge referred to the Delegate’s decision, which was before the Tribunal, and which was accepted by the appellant to accurately state his claims for protection. One of those claims was (Tribunal’s reasons at [21]):

•    … Further to being expelled from the CCP, the applicant claimed that the Guangdong provincial authorities cancelled his retirement benefits including his health insurance and pension. The applicant noted that as a result of this action, and as a consequence of being deprived of any income, the applicant believes if returned to China he will lead a life of poverty.

33    The primary judge observed that, in relation to that specific claim, the Delegate’s decision had recorded the appellant’s residual financial position, excluding the suspended entitlements, and had taken account of his liquid and real property interests (Reasons at [28]). The Delegate’s decision had also found that the appellant would be able to rely on his son for support.

34    Although, the appellant challenges the inference drawn by the primary judge in that same paragraph that the Tribunal simply did not accept that the appellant would suffer any significant economic hardship that threatened his capacity to subsist should he return to China, such an inference was clearly open on the material.

35    Of some import was the circumstance that the appellant’s claim before the Delegate that he ‘would face a life of abject poverty’ if he returns to China was not expressly reagitated before the Tribunal and no evidence was led to contradict the Delegate’s summation of his financial position. That is not surprising. The appellant’s evidence before the Delegate and the Tribunal was clear that he had considerable assets, built up over a lifetime of work, and that he would have the support of his son if he ever got into financial difficulty. As was said in AYY17 at [18], the way a claim is presented over time is important and, in this case, it is readily explicable that the Tribunal made no specific finding about whether the appellant would be faced with a life of poverty.

36    The Tribunal referred to the submission dated 22 February 2017, made on the appellant’s behalf by his migration agent to the Tribunal, which included his claim to ‘a very real fear that he will suffer persecution upon return to China’ and that ‘being deprived of his party membership and pension entitlements are indicative of the fact that should he return to China he would “surely face harsher persecution”’ (Tribunal’s reasons at [22]). This was not a claim that he would suffer such economic hardship as to threaten his capacity to subsist. His claim as to his ‘ability to subsist’ was made in respect of the consequences for him of the current threats he claims to be experiencing in Australia and his fear of ‘psychological distress’ in China which ‘will render him incapable of performing ordinary activities that are required for day-to-day life and are necessary to subsist’ (Tribunal’s reasons at [22]). The inference drawn by the primary judge was both logical and rational.

37    Even if it were established that the Tribunal had erred in failing to take into account that the cancellation of the appellant’s retirement benefits would ‘threaten [his] capacity to subsist’ (within the meaning of s 5J(5)(d) of the Migration Act), such an error would not be material. At the time of the Tribunal’s decision, no challenge was made to the extent of the appellant’s financial means, nor was there, at that time, any evidence that his assets were, or were about to be, frozen. There is still no such evidence. The appellant cannot discharge the onus, that rests on him, that consideration of whether the cancellation of his retirement benefits would threaten his ability to subsist could realistically have resulted in a different decision by the Tribunal: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60].

38    Grounds 1 and 2 cannot succeed.

Ground 3

39    As to Ground 3, the appellant contends that the primary judge ought to have found that the Tribunal failed to consider the ‘Future Claim’. As has already been observed above, the Tribunal referred to the appellant’s submission of 22 February 2017 that included his claim to ‘a very real fear that he will suffer persecution upon return to China’ and that ‘being deprived of his party membership and pension entitlements are indicative of the fact that should he return to China he would “surely face harsher persecution”’ (Tribunal’s reasons at [22]).

40    The principles relevant to determining whether or not a decision-maker has failed to consider, in the sense of having failed to give active intellectual consideration to a factor relevant to an administrative decision, are well settled. The requirement to apply an active intellectual process to weighing the factors that bear upon a decision arise as a necessary incident of the Minister’s task: Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 at 495-496. In XFCS v Minister for Home Affairs [2020] FCAFC 140 at [22], the Full Court drew attention to the context in which a court must grapple with the question of whether or not a decision-maker engaged in active intellectual consideration of the issue under review:

The epithet “active intellectual engagement” must be understood in its proper context of describing the nature and quality of consideration that will meet the statutory requirement for a lawful decision in the particular case rather than involving an evaluation by the Court on judicial review of the merit of the decision, the latter being a matter only for the administrative decision-maker: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [47]-[48] (Griffiths, White and Bromwich JJ), the Full Court noted that the question whether the decision-maker engaged in an active intellectual process requires the Court to conduct an evaluative judgment taking into account all the relevant facts and circumstances of each case. Further, such a finding will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof.

41    The Tribunal referred to the evidence of the appellant at the first hearing on 4 September 2017, at which the appellant was represented by a migration agent. The Tribunal recorded that the appellant said ‘that he was frightened as to what would happen to him if he went back to China…he had worked for the Communist Party for 43 years and never taken a day of leave or health care and now the treatment he received was that he had no annual leave, no sick leave, and no medical expenses being paid’ (Tribunal’s reasons at [45]).

42    There is no substance to the appellant’s contention that the Tribunal failed to consider the appellant’s ‘Future Claim’. To the contrary, the Tribunal made an express finding, inter alia, that the appellant’s pension, health insurance and other related privileges were cancelled (Tribunal’s reasons at [81]). Nevertheless, despite the cancellation of those privileges in 2015, the Tribunal found that there is not an objective real basis for the appellant’s fear of persecution. He was investigated in China between his retirement in 2012 and his departure for Australia in 2014. He was not subjected to torture or detained. He was allowed to leave China and his passport neither ceased nor was cancelled. He was able to obtain a police clearance in 2016 (Tribunal’s reasons at [82]).

43    Immediately following its express findings, the Tribunal stated that ‘Taking into consideration all of the circumstances of the case, the Tribunal is not satisfied that there is a well-founded fear of persecution’ (Tribunal’s reasons at [82]).

44    The appellant contends that such reasoning is illogical, making the submission that ‘[a] million white swans do not prove that all swans are white; one black swan proves not all swans are white!’ The Tribunal’s assessment of future events is necessarily somewhat speculative. In assessing whether a person holds a ‘well-founded fear’, the Tribunal is required to undertake an objective examination of the facts to determine whether the fear is justified: Chan at 429. The Tribunal did just that.

45    The primary judge observed that there was no logic to the appellant’s submission that he would suffer ‘harsher persecution’ in China simply as a consequence of the cancellation of his entitlements. The primary judge held ‘There was no independent evidence to that effect. The Tribunal was entitled to reject such [a] proposition, as it clearly did’ (Reasons at [34]).

46    The Tribunal’s rejection of the Future Claim was squarely within the decisional freedom of the Tribunal. No error by the primary judge is established.

47    Ground 3 cannot succeed.

Disposition

48    For these reasons, the appeal must be dismissed.

Associate:

Dated:    5 April 2022