Federal Court of Australia

BXP20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 964

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

Introduction

1    This is an appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia) made in BXP20 v Minister for Immigration [2020] FCCA 1901.

Background

2    The appellant was born in the People’s Republic of China in 1977. He arrived in Australia in September 2009 on a student visa.

3    In April 2012, the appellant applied for a protection visa on the basis that he feared persecution in China because he is Christian. In August 2012, a delegate of the first respondent (Minister) refused to grant the appellant a protection visa. The decision of the delegate was affirmed by the then Refugee Review Tribunal (RRT) in December 2012.

4    In July 2015, the appellant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) (partner visa) on the basis of his relationship with his wife, who is an Australian permanent resident. The appellant and his wife met in January 2014 and married in June 2015. The appellant held a bridging visa at the time he applied for the partner visa.

5    In June 2016, a delegate of the Minister (delegate) refused the application for a partner visa because the appellant did not meet the relevant criteria under cl 820.211 of the Migration Regulations 1994 (Cth). Subclause 820.211(2)(d) required that an appellant who does not hold a substantive visa at the time of their application meet certain criteria under the Migration Regulations (being criteria 3001, 3003 and 3004 of Sch 3 of the Migration Regulations (Sch 3 Criteria)) unless the Minister is satisfied that there are “compelling reasons” for not applying those criteria. In the context of that subclause, “compelling reasons” mean reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [10] (Bromberg J); Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; at [24] (Tamberlin, Conti and Jacobson JJ); MZYPZ at [10] (Bromberg J). It was not in dispute that the appellant was not the holder a substantive visa and did not meet the aforementioned criteria. In order to satisfy criterion 3001, the appellant was required to have lodged the application for a partner visa within 28 days of the “relevant day”, being the day that he last held a substantive visa (see Migration Regulations Sch 3, 3001(2)(c)(iii)). The delegate found that the appellant’s last substantive visa ceased on 3 November 2010 which was more than 28 days prior to lodging the partner visa application on 9 July 2015 and concluded that he did not meet criterion 3001.

6    The delegate noted the appellant’s claimed fear of persecution based on his religious beliefs, but resolved that those claims had been previously assessed by the Department of Immigration and Border Protection during the appellant’s application for a protection visa. The delegate otherwise accepted that the appellant’s relationship with his wife was genuine, that the appellant’s step-son had an intellectual disability and that the appellant’s wife had suffered a fall in March 2016. The delegate did not consider that these circumstances justified a waiver of the Sch 3 Criteria.

7    The appellant applied to the second respondent (Tribunal) for review of the decision of the delegate. In March 2017, the appellant’s migration agent provided further supporting documents to the Tribunal, including medical and other documentary information about a car accident which occurred in October 2016. Those documents included reports from a clinical psychologist, Ms Ng, and the appellant’s General Practitioner, Dr Lam. The appellant attended a hearing before the Tribunal assisted by an interpreter. Relevantly, the appellant claimed at the Tribunal that, in addition to his claimed fears of persecution raised before the delegate and caring responsibilities for his wife and step-son, his poor mental and physical health were additional “compelling reasons” to waive the Sch 3 Criteria.

8    On 31 March 2017, the Tribunal affirmed the decision of the delegate.

9    The question on review for the Tribunal was whether the delegate had made the correct and preferable decision in determining that compelling reasons did not exist to waive the Sch 3 Criteria.

10    The Tribunal (at [23]) found the appellant’s evidence to be “evasive, implausible and unreliable” and (at [36]) that the appellant had been “untruthful and manipulative” in a “deliberate and well-considered attempt to remain in Australia at any cost”. The Tribunal did not accept “any of the appellant’s claims”.

11    The Tribunal concluded that it was not satisfied that there were compelling reasons to waive the Sch 3 Criteria.

12    On 18 April 2017, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

13    The appellant advanced what were in substance four grounds of which only two are relevant for present purposes. First, the appellant submitted that the Tribunal failed to consider for itself whether the appellant’s return to China posed a risk to his safety, and thus did not consider whether there were “compelling reasons” for waiving the Sch 3 Criteria (primary judge at [16]). Second, the appellant contended that the Tribunal proceeded on an erroneous view of the law by treating its adverse assessment of the appellant’s credibility as determinative of the entirety of the appellant’s claims (primary judge at [39]-[41]).

14    The primary judge rejected both grounds and dismissed the application with costs.

The Grounds of appeal before this Court

15    The appellant essentially agitates the two aforementioned grounds on appeal to this Court. By the first ground the appellant claimed that the primary judge erred in finding that the Tribunal had considered the appellant’s claimed fear of harm. The appellant said that the primary judge ought to have found that the Tribunal fell into jurisdictional error by failing to consider the appellant’s claim.

16    The second ground asserts that the primary judge erred by finding that the Tribunal had not “proceeded on an erroneous view of the law” and ought to have found that the Tribunal constructively failed to exercise its jurisdiction “in relation to the corroborative evidence”. As expressed, the ground is ambiguous and lacks precision.

17    In reliance upon that ground, the appellant essentially contended that the primary judge had erred in concluding that the Tribunal’s rejection of certain medical opinions expressed by the appellant’s treating doctor Dr Lam, was limited only to those aspects of Dr Lam’s report which relied upon information provided to her by the appellant. It followed, the appellant said, that the Tribunal had wrongly rejected certain of Dr Lam’s opinions and constructively failed to exercise its jurisdiction by not dealing those opinions in circumstances where the opinions were capable of constituting compelling reasons to waive the Sch 3 Criteria.

18    That was not the contention precisely put to the primary judge. However, no issue was taken by the Minister as to the imprecise way in which the second ground was expressed nor was it said that a new ground was being raised on this appeal.

19    For the reasons that follow, I have determined that the appellant should fail on both the first and second grounds.

Ground 2 – failure to consider the appellant’s physical medical condition and its consequences

20    It is convenient to consider ground 2 first. The appellant contended that, before the Tribunal, he had claimed that he suffered from injuries which disabled him from returning to China and that those medical conditions were a compelling reason why the Sch 3 Criteria ought not be applied.

21    No such claim was made before the delegate but that was because the medical conditions relied upon were said to have been caused by a car accident involving the appellant which occurred on 30 October 2016, that is, after the delegate’s decision but prior to the hearing before the Tribunal. In any event, the Minister did not contest the making of the claim in question and it is apparent from the Tribunal’s reasons for decision (at [58]) that such a claim was made.

22    It is also clear that before the Tribunal and in support of the claimed medical conditions and their consequences, the appellant relied upon medical reports and letters, the contents of two of these in particular need to be fully set out.

23    First, a report dated 22 February 2017 of the appellant’s treating doctor, Dr Angela Lam. In her report, Dr Lam relevantly stated:

I am writing as [the appellant]’s treating doctor.

I have been seeing him regularly since November 2016.

He is most certainly not in a fit state of health to travel. In addition, his health, and in particular, his mental health, would be placed in significant and severe risk should he return to China, where he is unlikely to obtain the appropriate medical support and treatment.

[The appellant] was involved in a motor vehicle accident on 30 October 2016. He was sitting in his car, which was stationary, and felt a hard impact from behind. He was alleged to hit by a drunk driver. He recalled that his head hit the steering. A good friend, Jason, reported that when he attended the scene, [the appellant] was conscious, but not really responsive to verbal stimuli and had to be assisted out of the car.

Since then, various friends had reported [the appellant]'s mood as being very flat, and he was observed to sit for many hours, staring into space. He was essentially non-verbal during my first consultation with him. He responded in a child-like manner, nodding or shaking his head in response to questions if the question was repeated by his accompanying friend, Jason.

Over the latter half of last year, [the appellant] did improve minimally in terms of his verbal responsiveness, but continues to have what appears to be severe anhedonia. He was previously working as a chef, but has been medically unfit to return to this job. He remains dependent on his family and friends for activities of daily living. He has been unable to go out of his house unaccompanied. He relies on Jason to support him during his many medical appointments.

Clinically, his symptoms are consistent with severe post-traumatic stress disorder.

In addition, [the appellant] suffered a left shoulder labral tear as a result of the motor vehicle accident. He had been unable to move his left upper limb due to pain and restriction. He has been seen by orthopaedic surgeon Dr Jonathan Herald, who recommended surgery in view of the severity of the injury, the symptoms and his failure to improve with conservative therapy. Post-operatively, he will require extensive rehabilitation.

…

In summary, [the appellant] has severe physical and psychological injuries as a result of the motor vehicle accident. He is not fit to travel. He is extremely unlikely to be able to obtain the level of medical attention he will receive in Australia. He also requires surgery and a prolonged period of rehabilitation.

24    Second, the appellant relied upon a report of psychologist Ms Amy Ng. In her report, Ms Ng relevantly stated:

This letter is to confirm that [the appellant] had seen me for one psychological consultation on the 02/03/17.

Description of Initial Clinical Interview:

[The appellant] had been referred by her General Practitioner Dr Angelina Lam for the management and treatment related to his Post-Traumatic Stress Disorder and Major Depressive Disorder, recurrent with depressed and anxious moods.

[The appellant] reports a recent history of being in a car accident leading to personal injury on his back and subsequent symptoms of a Post-Traumatic Stress Disorder. [The appellant] also reports history of being in very difficult traumatic situations including (he witnessing of his father in the act of successfully committing suicide in china via jumping off a tall building. He was approx 19 years of age during the incident.

[The appellant] has one young child and is a happily married man. He lives with his wife and child and worked as a full time chef before his car accident approx. three months ago. He no longer works and is finding it extremely difficult to cope. He has lost self-esteem and is constantly experiencing negative emotions, insomnia, flashbacks, hyper arousal, lack of motivation and energy, reduced ability to concentrate and suicidal ideations.

[The appellant] appears to be having a lot of difficulty coping with day to day stressors and feels ongoing pressure to support his wife and young child. He does have some supportive friends in Australia whom is helping him with managing appointments and medications.

[The appellant] presents with suicidal ideations of jumping of high buildings, hopelessness, helplessness, excessive worries and guilt. His only protective factor is his wife and son. [The appellant] reports that he sees no reason to live if he cannot be with his son and family and felt useless and unable to care for himself if he was sent back to his home country.

PRESENTING PROBLEMS PERTAINING TO IMMIGRATION

During my evaluation of [the appellant] on the 02/03/17, he was presented with symptoms that are consistent with a Post-Traumatic Stress Disorder, single episode co-morbid with a Major Depressive Disorder, recurrent with depressed and anxious moods.

These symptoms included:

•    Decreased ability to function independently.

•    insomnia, increased alertness, agitation, worries and hyper-arousal symptoms,

•    loss of motivation to engage in activities and loss of appetite.

•    frequent feelings of sadness, feeling hopeless or worthless.

•    low energy, and finding it difficult to enjoy typically joyful aspects of life.

•    trouble concentrating and making decisions.

•    Persistent anxious and depressed mood.

•    Difficulty with concentration and poor memory.

•    Mood swings' irritability and anger outbursts.

•    Has terminated employment due to difficulty with managing some pain, memory and concentration. Unable to return to work in a high stress environment due to his hyper arousal symptoms.

Based on clinical observations and assessment of [the appellant]’s mental status, he will need someone to support him psychologically, physically and financially with his daily activities, including the administration and monitoring of his day to day affairs.

He will also need ongoing support from a family member or friend to assist him with attending appointments and engagement in psychological treatment.

25    Those reports identify the two medical conditions which the appellant claimed he suffered as a result of the car accident. Both Ms Ng and Dr Lam diagnosed the appellant as experiencing symptoms consistent with a Post-Traumatic Stress Disorder (PTSD). Additionally, Dr Lam diagnosed the appellant as suffering from a left shoulder labral tear. Dr Lam stated that the appellant had “severe physical and psychological injuries as the result of the motor car accident”.

26    In relation to the shoulder injury, Dr Lam recorded that the appellant had been seen by orthopaedic surgeon, Dr Jonathan Herald, who had “recommended surgery in view of the severity of the injury, the symptoms and [the appellant’s] failure to improve with conservative therapy”. Dr Herald had stated that, post-operatively, the appellant would require extensive rehabilitation.

27    Dr Lam opined that the appellant was not fit to travel. That opinion is expressed twice in Dr Lam’s report, on the first occasion Dr Lam opined that the appellant was “most certainly not in a fit state of health to travel”. Fairly read, Dr Lam’s report attributes her opinion that the appellant is unfit to travel to both the appellant’s shoulder injury as well as his PTSD.

28    The Tribunal rejected that the appellant’s medical issues constituted a compelling reason to waive the Sch 3 Criteria. The basis for that rejection was given at [58] of the Tribunal’s reasons and said to be that the Tribunal was not satisfied that the “[appellant]’s reported medical issues have not been fabricated in order to support his claim to remain in Australia” (at [60]). In coming to that conclusion the Tribunal relied on two matters. First (at [58]) the Tribunal considered that the reports of Dr Lam and Ms Ng were “entirely unreliable”. Second (at [59]), whilst acknowledging that the Tribunal member was not a medical expert, the Tribunal member said that she had observed that the appellant presented “as capable of exhibiting a range of higher level emotions including humour and frustration; he was animated, aware and clear in his speech and mannerisms”. Further that he was “neither non-verbal nor child-like in his responses to the Tribunal’s questions but mentally alert and agile” and that the appellant “did not appear to be physically constrained or stiff in any way”.

29    In relation to why the Tribunal considered the reports of Dr Lam and Ms Ng to be “entirely unreliable”, the Tribunal referred to an earlier part of its reasons for decision under the heading “Credibility of documentary evidence”. Most relevantly and at [41], the Tribunal said this in relation to Dr Lam’s report (emphasis added):

The Tribunal finds that the statements and reports by Dr Angela Lam rely upon the [appellant]'s untruthful claims and hence the Tribunal considers those statements unreliable. The Tribunal therefore puts no weight on Dr Lam's claims that the [appellant] is unfit to travel and unlikely to obtain the medical attention he requires if he travels to China.

30    In relation to Ms Ng’s report, and at [45], the Tribunal said this (emphasis added):

The Tribunal finds that psychological report to be either deliberately fabricated to support the [appellant]'s claims or if not, based upon untruthful statements provided by the [appellant]. In any case, the Tribunal finds this report unreliable and therefore gives it no weight.

31    As I will further explain below, I have grave concerns about the fact finding task performed by the Tribunal. The Tribunal made several findings which, with respect to the Tribunal, can only be described as disturbing. One such disturbing finding is the finding just recorded that Ms Ng’s report may have been “deliberately fabricated” to support the appellant’s claims.

32    The meagre basis for the Tribunal’s finding that the report was “deliberately fabricated” appears to be a discrepancy between a date which appears at the bottom of the report (8 August 2016) and Ms Ng’s statement in the report (twice appearing) that she saw the appellant for evaluation on 2 March 2017. That the date at the bottom of the report is likely to be incorrect is confirmed by Dr Lam’s letter dated 17 January 2017, referring the appellant to Ms Ng’s clinic.

33    What appears to have been a mere inadvertence as to a date, was incapable of supporting a serious accusation that is tantamount to fraud. The Tribunal’s suggestion that Ms Ng may have been involved or somehow participated in producing a letter that was “deliberately fabricated” was in no way justified by the evidence before the Tribunal. It was an allegation of the most serious kind made without any proper basis. It deserves to be condemned in the strongest terms. The Minister did not seek to defend it.

34    A similarly disturbing finding was made by the Tribunal in relation to the appellant’s solicitor. I shall return to that matter later.

35    First, I should record, that there is no issue that:

(i)    it was a matter for the Tribunal to assess the appellant’s credibility; and

(ii)    that it was open to the Tribunal to find, as it did, that the appellant was not truthful, or moreover as the Tribunal found at [36], that “the appellant has been untruthful and manipulative in a deliberate and well-considered attempt to remain in Australia at any cost”.

36    Nor is it in issue that it was open to the Tribunal to reason that because the appellant was not a truthful person, the opinions arrived at by Dr Lam and Ms Ng were unreliable to the extent that they were based on or reliant upon the appellant’s self-reporting.

37    What is in issue, however, is whether the Tribunal’s concern with the appellant’s credibility, which I have accepted it was open for the Tribunal to have, permitted the Tribunal, within jurisdiction, not to accept that the appellant’s claimed medical conditions existed by finding the reports of Dr Lam and Ms Ng to be “entirely unreliable” and thus giving no weight to the opinions there expressed. Including, that the appellant was unfit to travel and that he was unlikely to obtain the medical attention he required if he travelled to China.

38    As to this issue, the error the appellant claims to have been made by the primary judge is said to be at [36], [37] and [41] of his Honour’s reasons. Referring to the opinions of Dr Lam and Ms Ng as “claims”, the primary judge seems to have arrived at the conclusion that what the Tribunal did in rejecting the opinions of Dr Lam and Ms Ng was permissible because the Tribunal only gave no weight to those opinions to the extent that the opinions “relied on the evidence of the [appellant]” (see in particular the primary judge at [41]).

39    The appellant also contended that the primary judge erred in concluding that the Tribunal’s rejection of the opinions expressed by Dr Lam was limited to “particular conclusions Dr Lam purportedly expressed” (primary judge at [36]). It would seem from [37] of the primary judge’s reasons, that his Honour regarded the opinion of Dr Lam that the appellant was not fit for travel and unlikely to obtain the medical attention he required if he travelled to China, as not directed to and not associated with Dr Lam’s opinion that the appellant required surgery for his shoulder injury.

40    With respect to the primary judge, I agree with the appellant’s contention that insofar as the primary judge considered that the Tribunal’s rejection of the opinions expressed by Dr Lam to be limited to particular conclusions, the primary judge erred. The Tribunal expressly stated at [58] that Dr Lam’s report (as well as that of Ms Ng) was “entirely unreliable”. That finding must have extended to Dr Lam’s opinion expressed about each of the two medical conditions the appellant relied on. Additionally (at [41]) the Tribunal stated that the “statements and reports” by Dr Lam were “unreliable”. It was for that reason, as the Tribunal continued at [41], that no weight was given to “Dr Lam’s claims that the [appellant] is unfit for travel and unlikely to obtain the medical attention he requires if he travels to China”.

41    The primary judge seems to have read down the Tribunal’s wholesale rejection of the opinions expressed by Dr Lam as being intended to be confined to a denial of those opinions which were based upon what the appellant had told Dr Lam, having reasoned at [36] that it was only opinions based on that foundation that it was “reasonably open” for the Tribunal to reject.

42    I agree, with respect to the primary judge, that it was only reasonably open for the Tribunal to have rejected opinions expressed by Dr Lam which were based upon what Dr Lam had been told by the appellant. I disagree, however, that that is what the Tribunal did. Unfortunately, the Tribunal’s reasons, fairly read as a whole, do not warrant the assumption made by the primary judge as to how the Tribunal must have approached its fact-finding task.

43    It was not open to the Tribunal to have rejected Dr Lam’s opinion that the appellant was suffering a left shoulder labral tear. It was not open for the Tribunal to have concluded that Dr Lam’s opinion in relation to the shoulder injury was based upon what she had been told by the appellant in circumstances where it was obvious from Dr Lam’s report that Dr Lam relied upon what she had been told directly by an orthopaedic surgeon.

44    However, despite the clear and uncontested evidence about the appellant’s physical injury, including correspondence from the orthopaedic surgeon to the appellant seeking his consent for the intended surgical procedure on the appellant’s left shoulder, the Tribunal at [36] found that the appellant had “blithely and unconscionably lied” including as to his “physical health” and that he had “wilfully manipulated people to support these lies and untruths in an attempt to support his claims”. Furthermore, at [60] the Tribunal stated that it was not satisfied that the “[appellant]’s reported medical issues have not been fabricated in order to support his claims to remain in Australia” (emphasis added). The Tribunal’s apparent disbelief as to the claimed shoulder injury was, it appears, reinforced for the Tribunal by its own observation recorded at [59] of its reasons that the appellant “did not appear to be physically constrained or stiff in any way”.

45    Later in its reasons (at [67]-[69]) the Tribunal considered what it seems to have regarded as a separate claim made by the appellant that his surgery and compensation claim constituted compelling reasons to waive the Sch 3 Criteria. In that context, the Tribunal seems to have been more willing to accept the appellant’s shoulder injury as real and not fabricated. Inconsistently with its earlier findings to which I have referred, the Tribunal stated that it “accepts that the [appellant] may require surgery on his shoulder in the future” (at [68]).

46    I well appreciate that the Tribunal’s reasons should be fairly read without a fine eye attuned to error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. However, that approach does not entail turning a blind eye to a compelling inference that the Tribunal’s approach to its fact finding task was very substantially flawed. In that respect I have in mind several flaws in the Tribunal’s fact finding: first, the apparent inconsistency in the findings made by the Tribunal about the appellant’s physical injury, second the Tribunal’s preparedness to take into account its own observations of the appellant’s physical state, third the indefensible finding that Ms Ng’s report may be “deliberately fabricated” and fourth, the unfounded but extremely serious accusation made by the Tribunal against the appellant’s solicitor (at [37]), that a statutory declaration provided by the solicitor is “unreliable and potentially concocted to support the [appellant]’s claim”. Without any proper basis, the Tribunal described the solicitor’s correction by a second statutory declaration of the previously stated location of the appellant’s car accident as not being “anything other than self-serving” stating that the Tribunal was “very concerned that [the solicitor] appears to have made a false declaration under oath”.

47    With respect to the Tribunal, its preparedness to make serious allegations of this kind without any basis or any proper basis, is not only highly inappropriate, it is troubling. Coupling that with the inconsistency which attends the various starkly contrasting views the Tribunal expressed as to the existence of the appellant’s physical injury (amongst other findings), I am left with a deep sense of disquiet about the performance by the Tribunal of its fact-finding task.

48    As I have said at [35], the Tribunal was entitled to find that the appellant was untruthful and unreliable. Having so found, it was open to the Tribunal to infer that the appellant had been dishonest and even manipulative when assessed by Dr Lam and Ms Ng. The Tribunal was therefore entitled to question the reliability of the corroborating medical evidence about the appellant’s injuries which was based on his self-reporting or his behaviour when assessed by the medical experts. However, it was not open to the Tribunal on the evidence before it, to question the honesty of the appellant’s medical advisors. Nor was it open for the Tribunal to reject those of their opinions, such as that the appellant had a serious injury to his shoulder, that he was not fit to travel and that there were insufficient medical facilities available for him in China, in so far as those opinions were not reliant upon the appellant’s self-reporting. It is clear enough that that is what the Tribunal did. To proceed on the basis that the Tribunal must only have done what was open for a reasonable Tribunal to have done, as the primary judge seems to have proceeded, is in my respectful view to proceed upon an unsafe assumption given the very substantially flawed approach to fact-finding disclosed by the Tribunal’s reasons.

49    Furthermore, I do not with respect to the primary judge, accept that the Tribunal reasoned that Dr Lam’s opinion that the appellant was unfit to travel and would not obtain appropriate medical attention in China was dissociated with Dr Lam’s opinion that the appellant had a shoulder injury. At [37] of his Honour’s reasons, the primary judge dismissed reliance on the account of the appellant’s surgeon because it had not been submitted that that report contained an opinion to the effect that the appellant was unfit to travel. With respect, that conclusion is not to the point. It was Dr Lam’s opinion that the appellant was not fit to travel. That was based on the observation of the appellant’s surgeon that the appellant required surgery and rehabilitation for his physical injury. It was open to Dr Lam to express such an opinion and it is not apparent that such an opinion was contingent on information conveyed to her by the appellant, at least in respect of his physical health.

50    For the reasons already given, the Tribunal’s comprehensive rejection of all of Dr Lam’s opinions, including that he was unfit to travel, were based upon the flawed approach it took that all of those opinions were tainted by the appellant’s lack of credibility. I do not accept that the Tribunal regarded Dr Lam’s opinion that the appellant was unfit to travel as dissociated from his shoulder injury and need for surgery. That is not what the Tribunal did and I doubt it was open to the Tribunal to have done that. Dr Lam referred to the appellant’s “severe physical and psychological injuries” immediately prior to stating (for the second time) that the appellant was unfit to travel. The comment made almost immediately thereafter that the appellant requires “surgery and a prolonged period of rehabilitation” seems also to be directed to the inappropriateness of the appellant being made to leave Australia given that he was suffering an injury to his shoulder.

51    It is necessary then to consider whether the errors made by the Tribunal constituted jurisdictional error.

52    Although an error of fact without more is unlikely to sound in jurisdictional error, the circumstances differ where an error results in a finding as to the general credibility of a party: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR at [55]-[56] (Katzmann, Griffiths and Wigney JJ). That is particularly so where a finding of a fact forms the basis for rejecting the entirety of the appellant’s evidence or claim: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78] (Robertson J). As is well known, the judicial assessment of jurisdictional error, while assisted by a taxonomy of grounds of judicial review, must nevertheless be undertaken on case by case basis with close reference to the facts before the Court: SZSRS at [49]; SZRKT at [77] and [111]. If the Tribunal ignores material of sufficient importance to its statutory task, it may well fall into jurisdictional error: SZRKT at [111].

53    That principle was recently further elaborated upon by the Full Court (Bromberg, Jackson and Feutrill JJ) in KXXH v Minister for Immigration, Citizenship, Migrant, Services and Multicultural Affairs [2022] FCAFC 111.

54    The Full Court at [45]-[46] referred to the recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 and the summary of relevant principles given by the majority of the High Court in that case. In particular, the Full Court referred to the observation made at [24] of Plaintiff M1 that “a decision-maker must read, identify, understand and evaluate” the representations made to it. Further and as quoted by the Full Court, at [27] the High Court majority said:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

55    The Full Court in KXXH went on, relevantly, to say at [52] and [53]:

More broadly, the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46].

It is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).

56    In the present case, the Tribunal was obliged to determine whether the medical material relied upon by the appellant disclosed “compelling reasons” to waive the Sch 3 Criteria. The Tribunal erroneously disposed of medical opinions relied upon by the appellant. In particular, the Tribunal afforded the conclusions of Dr Lam that the appellant was unfit to travel and unlikely to obtain appropriate medical attention in China no weight having erroneously concluded that Dr Lam’s report “rel[ied] upon the [appellant]’s untruthful claims” (at [41]). However, key aspects of Dr Lam’s report did not rely on the appellant’s claims at all. Dr Lam’s opinion regarding the medical facilities in China, the appellant’s physical health and his fitness to travel could not have been logically rejected on the basis of him being a “blithe and unconscionabl[e]” liar (at [36]). It appears to me that the Tribunal did exactly that and in so doing failed to have regard to some of the circumstances relied upon by the appellant to make good his case that there were “compelling reasons” for the Sch 3 Criteria to be waived.

57    However, the failure of a decision-maker to consider or have regard to material will only give rise to jurisdictional error where the material is of sufficient importance to the decision-maker’s statutory task. Neither the submissions of the appellant nor the Minister addressed the importance of the medical opinions, which I have found were erroneously ignored, to the statutory task of the Tribunal. The onus lies on the appellant to establish jurisdictional error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). To my mind, it has not been established that the material in question was of sufficient importance to the Tribunal’s statutory task to warrant a finding of jurisdictional error.

58    The findings that the Tribunal should have made if it had not erroneously ignored the relevant opinions of Dr Lam, were that by reason of his shoulder injury the appellant was not fit to travel and unlikely to obtain appropriate medical attention in China. It is necessary, however, to properly appreciate the significance of a finding that the appellant was unfit to travel due to his shoulder injury. Dr Lam’s opinion to that effect was not to be characterised as suggesting that the appellant was unable to travel at all. Read in context, the opinion that the appellant was unfit to travel went to the suitability of the appellant being required to travel rather than his inability to do so.

59    Understood in its proper context, the circumstances that should have been taken into account but were not, were only some of the circumstances relied upon by the appellant to demonstrate the potential for harm or hardship that he would experience if he were required to leave Australia. Other such circumstances relied upon by the appellant, without any success before the Tribunal, were: the appellant’s inability to care for his step-son and wife (see the Tribunal’s reasons at [47]-[51]), the delay to his possible need for surgery and any prejudice to the appellant’s pursuance of his claim for compensation (see the Tribunal’s reasons at [67]-[69]) and the potential harm if the appellant, his wife and step-son were required to leave Australia together for the time it would take to process the appellant’s visa application overseas (see the Tribunal’s reasons at [70]-[72]).

60    In the context of the circumstances in question being only part of the overall circumstances relied upon for the potential harm or hardship to the appellant and given the very broad and largely unconfined discretion given to the Tribunal in determining whether “compelling reasons” exist for waving the Sch 3 Criteria, whilst I would accept that the material erroneously ignored by the Tribunal was capable of materially contributing to a finding that “compelling reasons” existed, the appellant has failed to persuade me that by ignoring that material the Tribunal failed to consider material of sufficient importance to its statutory task.

61    For those reasons, the primary judge did not fail to identify jurisdictional error made by the Tribunal and this ground of appeal must fail.

ground 1 – Failure to consider the appellant’s claimed fear of harm if returned to China

62    In respect of the appellant’s claimed fear of persecution if he were returned to China, the Tribunal said (at [50]):

It is not this Tribunal’s role to make a finding about the [appellant]’s claim to fear persecution if he should return to China. However his claims have been tested by the department of immigration and the Refugee Review Tribunal. The latter found the [appellant]’s claims not to be credible and that there was no reason why he could not return to China.

63    The appellant submitted that the Tribunal failed to consider his claim to fear harm upon being returned to China. The appellant referred to the Tribunal’s statement set out above. Having expressly disavowed the obligation to consider the claim, it followed, the appellant said, that the Tribunal had not considered it. Although it was not entirely free from doubt, the parties agreed that the appropriate inference for me to draw is that the decision of the RRT was before the Tribunal. I accept that that inference is open and should be drawn.

64    In support of the submission, the appellant also referred to the Tribunal’s failure to make any findings of fact in respect of the claim, its reliance on the findings of the RRT and the Tribunal’s approach to questioning at the hearing. These factors were said to support an inference that the Tribunal had failed to consider the appellant’s claim.

65    The appellant relied on the decisions of the Full Court in Ali v Minister for Home Affairs (2020) 278 FCR 627 at [107] and [111] (Collier, Reeves, and Derrington JJ) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181 at [86] and [117]-[124] (Kerr and Mortimer JJ, Allsop CJ agreeing). Although situated in different statutory setting, it may be accepted that these decisions provide at least some support for the appellant’s submission.

66    The appellant observed that in Ali the Assistant Minister had stated that it was “unnecessary to determine whether non-refoulement obligations are owed in respect of [the appellant] for the purposes of the present decision, as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application” Ali at [6] (Collier, Reeves, and Derrington JJ). The Full Court said at [96] that this explanation indicated prima facie that the Assistant Minister had not considered the appellant’s claim.

67    The appellant submitted that the statement of the Tribunal referred to above at [62] similarly disclosed an inference that the Tribunal had failed to consider the appellant’s protection claim by disavowing any obligation to do so.

68    In MZYPZ, the RRT dealt with the appellant’s claim that he was fearful of returning to Sri Lanka in the following terms:

…and the Tribunal finds that the applicant has made an application for a protection visa in the past and that this application was refused.  Accordingly the Tribunal finds that these claims do not amount to compelling circumstances. 

69    In that case I found that the Tribunal had foreclosed its consideration of whether returning to Sri Lanka posed a sufficient risk to the appellant’s safety by relying on the RRT’s rejection of the appellant’s application for a protection visa. In doing so, the Tribunal failed to discharge its obligation to consider whether the appellant’s claim might justify a finding that compelling circumstances to waive the Sch 3 Criteria existed (at [26]-[27]).

70    However, in that decision I observed that it would have been permissible for the Tribunal “to have had regard to any findings made by the RRT” about the issues before it provided that it was “assisted by an accurate account of the relevant evidence and submissions upon which those findings were made” (at [29]). That statement is conceptually consistent with the well-known principle that a decision-maker, especially a Minister, may ordinarily rely on a summary of material before him or her, provided that the summary does not materially misstate or omit a matter which the decision-maker is obliged to consider: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31 (Gibbs CJ).

71    The primary judge relied on MZYPZ, concluding that in the present matter the Tribunal had had regard to the anterior findings of the RRT but in the context of the Tribunal assessing the claim for itself (see [20]-[23]). In my opinion, the primary judge did so correctly.

72    In MZYPZ, the Assistant Minister relied solely on the bare assertion that it was unnecessary to consider the appellant’s claim because the appellant had previously been refused a protection visa. The appellant submitted that the present statement of the Tribunal was in fact more egregious than that in MZYPZ because it included the suggestion that it was not the “role [of the Tribunal] to make a finding about the appellant’s claim to fear persecution if he should return to China”.

73    The statement of the Tribunal in the present matter, taken alone, may have been capable of supporting a similar inference. However, the reasons of the Tribunal, read in context, disclose that the Tribunal did not disavow its statutory task in purported reliance on the anterior decision of the RRT. The Tribunal adverted to the findings of the RRT that the appellant’s claims were not credible and that there was no reason that he could not return to China. In the following paragraph, the Tribunal found, consistently with the findings of the RRT, that it was “not satisfied that the [appellant’s] claim to fear persecution is truthful or reliable or that he would suffer harm if he returned to China to lodge his partner visa application” (emphasis added).

74    Read in context, it is clear that the Tribunal was having regard to, and expressing agreement with, the findings of the RRT that the appellant was not a witness of truth. The reasons of the Tribunal were primarily concerned with its doubts as to the credibility of the appellant. It is abundantly clear from its reasons that the Tribunal arrived at that conclusion based on its own reasoning and did not eschew its own judgement by uncritically relying upon the view of the RRT. The Tribunal elsewhere (at [36]) found that the appellant was “untruthful and manipulative in a deliberate and well-considered attempt to remain in Australia at any cost”. That the Tribunal considered the claimed fear of harm but concluded that it could not be satisfied that this was a compelling reason to waive the Sch 3 Criteria due to the appellant’s untruthfulness is also consistent with the statement in the Tribunal’s reasons that it had nevertheless considered the appellant’s claimed fear of harm (despite elsewhere stating that it was not its role to make findings about the appellant’s claim to fear persecution) (see the Tribunal’s reasons at [47]-[51]).

75    In that context it cannot be said that that the Tribunal failed to consider the appellant’s fear of persecution. The Tribunal determined for itself that the asserted claim of the appellant was not truthful or reliable. That conclusion was consistent with its findings elsewhere in its reasons that the appellant was not a witness of truth. Read in that context, it was open to the Tribunal to conclude that it could not be satisfied that the appellant feared the claimed harm should he be returned to China.

76    The primary judge adopted a similar approach to my own and to my mind there was not appealable error in his reasoning. The additional matters in support of the appellant’s submission (referred to above at [64]) are of little consequence in the context where the Tribunal had already dealt with the appellant’s fear of harm by finding that it could not be satisfied as to the truth of the appellant’s claims. In the context of the Tribunal’s decision as a whole, the Tribunal’s observation that it was not its role to make a finding about the appellant’s fear of persecution is apt to be regarded as not much more than the Tribunal saying it was not its role to determine whether the appellant should be granted a protection visa.

Conclusion

77    As both grounds of appeal fail, the appeal must be dismissed. It follows that the appellant should pay the Minister’s costs of the appeal.

Associate:

Dated:    19 August 2022