Federal Court of Australia

CEH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J

Introduction

1    The appellant is a citizen of the People’s Republic of China. She first arrived in Australia on 25 February 2009. On 29 February 2012, the appellant was granted a Spouse (Migrant) (subclass 100) visa pursuant to her marriage to her now-deceased husband. The Spouse visa was cancelled on 29 March 2017 following the appellant being convicted and sentenced to three years’ imprisonment (of which she served 12 months) for smuggling weapons into Australia. A delegate of the Minister refused the appellant’s application to revoke the cancellation decision. The appellant unsuccessfully applied for merits review of the delegate’s decision in the Tribunal, and was similarly unsuccessful in her application for judicial review in this Court.

2    On 28 November 2019, the appellant applied for a protection visa (subclass 866). In her visa application, the appellant claimed that she would experience harm in China due to her “helping the Falun Gong associates” and because she would be subject to double jeopardy in China for the offences she had been convicted of and sentenced for in Australia.

3    On 17 February 2020, a delegate of the Minister refused the appellant’s protection visa application. The appellant then applied for merits review before the Tribunal on 24 February 2020. On 24 April 2020, the Tribunal affirmed the decision to refuse the appellant’s protection visa application (T). The Tribunal found, inter alia, that the chances of the appellant being re-prosecuted in China were remote: at T[46] and [94].

4    On 18 May 2020, the appellant lodged an application for judicial review in the (then) Federal Circuit Court of Australia (FCCA). The appellant advanced three grounds of review before the primary judge: first, the Tribunal failed to consider her claim regarding the amount of time that she had spent in prison in Australia. Secondly, the Tribunal’s decision was illogical and legally unreasonable in relation to its interpretation of art 125 of the Criminal Law of the People’s Republic of China (Criminal Law of China). Thirdly, the Tribunal denied the appellant procedural fairness because she was given no opportunity to rebut, by way of submissions, information in an article by the South China Morning Post.

5    The appellant appeared unrepresented, with the assistance of an interpreter, before the primary judge on 7 September 2020. The primary judge adjourned the hearing at 2:56pm, and at 2:58pm court resumed and his Honour delivered judgment. The primary judge provided written reasons for his decision on 24 February 2021: CEH20 v Minister for Immigration & Anor [2020] FCCA 2509 (J).

6    None of the following applications were opposed by the Minister: the appellant was granted leave at hearing for time to be extended for her to file her notice of appeal, to raise a new ground of alleged jurisdictional error for the first time on appeal and to rely on further evidence on appeal.

7    This appeal concerns:

(a)    whether the primary judge failed to sufficiently or satisfactorily dispose of the appellant’s unsuccessful grounds of review (ground 1); and

(b)    whether the Tribunal breached s 425 of the Migration Act 1958 (Cth) (ground 2).

8    For the reasons that follow, I dismiss the appeal.

9    This appeal concerns, essentially, the Tribunal’s reasoning with respect to that portion of the appellant’s protection visa claim arising from her criminal conviction and sentenced imprisonment for smuggling weapons into Australia. Accordingly, the descriptive background of each of the delegate’s decision, the Tribunal’s and the primary judge’s reasons will focus on only those relevant portions that relate to the same.

The delegate’s decision

10    On 17 December 2019, the appellant participated in a Departmental interview for the purposes of her protection visa application. In that interview, the appellant answered questions from the delegate and provided further detail regarding her claims and the delegate thereafter made her decision.

11    As part of the delegate’s decision, the delegate summarised the appellant’s protection claims as follows:

•    The applicant left China on a spouse visa to join her then (and current husband) [sic].

•    She claims she will be killed by the Chinese government because of her involvement in the illegal importation of weapons into Australia, which involved Hong Kong/Chinese law enforcement in collaboration with the Australian Federal Police (AFP).

•    When she was in China, she received a warning letter because she was “helping the Falun Gong associates”. She also lost her job for that reason.

•    Because the Chinese authorities were involved in her arrest, she also fears ‘double jeopardy’. For that reason, relocation in China would be futile.

•    The applicant claims that Australia’s Mutual Assistance in Criminal Matters Act 1987 (Cth) and China’s “mutual assistance in criminal matters Regulations 2007” requires both countries to notify the results of criminal prosecutions.

•    The applicant was arrested by the AFP in Australia in 2013 and sentenced to three years imprisonment.

•    “I understand from documents “to be released by the Department in response to a Freedom of Information request to be made by the Department Consulate General of the People’s Republic of China to request an entry permit into China on behalf of me. The correspondence, to the Department will advised that I been in Australia committed an offence in Australia eg. Gun charges” [sic].

•    She fears isolation and depression if she returns to China.

•    She also claims the authorities will detain, interrogate and disproportionately punish her, and her life will be in jeopardy. The conditions in criminal detention centres in China are harsh and degrading. There is a lack of food and water, sanitary conditions and medical treatment. She will be vulnerable to sexual abuse, other humanitarian abuses and the death penalty.

•    China does not recognise the defence of ‘double jeopardy’ so she will be re-prosecuted for the same offences in China.

•    The police in China can detain and interrogate her, extend pre-trial detention periods, limit access to legal counsel and torture her to compel a confession.

•    The applicant cited a case determined by the UK Upper Tribunal which listed a higher risk of re-prosecution in China for cases with specific characteristics and she aligns her circumstances to one of those characteristics in that it significantly embarrassed the Chinese authorities.

•    The applicant also contends that even though re-prosecution of overseas offenders is reportedly extremely rare, this is limited to information made publicly available by an “extremely secretive government”. No confidence should be given to assurances from Chinese government officials about the likely treatment of returnees.

12    The appellant’s husband also provided an email to the Department following the appellant’s interview. In answer to her claims, the delegate made the following findings of fact.

13    As can be seen from the above, the appellant claimed the need for protection by reason of: (a) what she anticipates will be the punishment she will receive from the Chinese government if she returns given her criminal conviction in Australia and (b) her association with Falun Gong as well as her Christianity.

14    With respect to the appellant’s criminal history in Australia, the delegate accepted that the appellant was convicted of Commonwealth and State offences relating to the importation and possession of firearms, and was subsequently sentenced to a term of imprisonment. The delegate accepted that the Chinese authorities were aware of the appellant’s criminal activities in Australia.

15    The delegate did not view the appellant’s testimony as sufficient, in isolation, to demonstrate that the Chinese authorities were aware of her criminal history in Australia. However, the delegate relied upon the sentencing remarks of Judge Pickering, in which his Honour specifically noted that the importation of the prohibited goods arrived in Australia from Hong Kong. This supports the appellant’s contention that the Hong Kong authorities were aware of the illegal shipment and the role the appellant played in it.

16    With respect to the appellant’s claim that she will be arrested by Chinese officials given her criminal activity in Australia, the delegate found that she did not have sufficient information (such as an arrest warrant) which suggested that the Chinese authorities had an adverse interest in the appellant due to her criminal offences in Australia.

17    Given the above, the delegate found that there was sufficient evidence to demonstrate that the Chinese authorities are aware of the appellant’s criminal history in Australia, and that she had a genuine, subjective fear of being targeted by Chinese authorities for the same reason. However, the delegate ultimately found that the appellant was not a person in respect of whom Australia has protection obligations, as discussed below.

Section 36(2)(a) findings

18    The delegate proceeded to consider whether the appellant satisfied the refugee criterion in s 36(2)(a) of the Act. “Refugee” is defined in s 5H of the Act and provides that a person is a refugee, when they have a nationality, if the person 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. The delegate considered whether the appellant satisfied the definition of “well-founded fear of persecution”, which is contained in s 5J of the Act.

19    The appellant claimed that she would be targeted by authorities if she returns to China, and that she will be re-prosecuted for criminal offences for which she has already been appropriately prosecuted and punished in Australia. The delegate had regard to information regarding re-prosecution of offences in China and noted that “[r]e-prosecution of a crime that was tried in another country is allowed under China’s Criminal Law”. The delegate emphasised that, according to the United Kingdom Foreign and Commonwealth Office’s 2015 Country Information and Guidance report on double jeopardy, whilst there is a risk of re-prosecution, “use of the legal provisions [in China] is discretionary and extremely rare. Without particular aggravating factors, the risk falls well below the level required to engage international protection”.

20    The delegate then considered whether the crimes were of interest to Chinese authorities. The delegate noted that the sources cited in her decision that “China’s interest in the return of its citizens implicated in criminal activities is focused on those suspected of involvement in very specific crimes”. The delegate found that, based on the sources she considered, there was no information which suggested that a Chinese citizen who has been appropriately prosecuted in Australia for the types of offences committed by the appellant has been re-prosecuted for the same offences in China, but noted that China may not release information to the contrary. Given the same, the delegate noted that “an absence of information should not automatically lead to a conclusion that there is no real chance that the applicant will be re-prosecuted in China”. The delegate then considered examples of Chinese citizens whose criminal involvement did attract adverse interest from the Chinese authorities, and compared them to the appellant’s circumstances. The delegate found that the absence of “credible, active attention” on the appellant “from the Chinese authorities is reasonable evidence that she is not of adverse interest to them”. The appellant did not claim that she had been contacted by Chinese authorities, and whilst the delegate did not accept that the Chinese police visited the appellant’s brother in China, the delegate noted that even if she was wrong, the appellant claimed that the police only visited on one occasion, and inquired as to her whereabouts. The delegate ultimately found that the criminal offences that the appellant had been prosecuted for in Australia were “not of the profile or level of seriousness that the Chinese authorities are known to pursue and punish, or re-prosecute”. Given the same, the delegate found it “difficult to envisage the Chinese authorities expending resources to pursue and re-try someone who would be perceived to be a one-time, relatively low level, non-violent offender”.

21    The delegate concluded by assessing the appellant’s claim, and found there was no information before the delegate that Chinese citizens who had been convicted of the offences that the appellant had been convicted of would be re-prosecuted in China. Further, there was no evidence that China had sought help from Australian officials to return the appellant to China. Further, the delegate found that there was no evidence to suggest the appellant’s case had received adverse publicity in China, that there was a political angle to her offences, or that her offences affected well-connected victims in China. There was also no evidence to suggest that the appellant’s offences involved corruption or other economic fraud. As such, there were no particular aggravating factors that would increase the chance of re-prosecution in China. Further, the delegate found that the appellant’s “sentence was less than three years imprisonment”, and was therefore less likely to be of adverse interest to Chinese authorities.

22    Given the above findings, the delegate was not satisfied that there was a real chance of persecution for one or more of the reasons identified in s 5J(1)(a) of the Act. Given the same, the appellant was not a refugee as defined in s 5H. Section 36(2)(a) was therefore not satisfied.

Section 36(2)(aa) findings

23    The delegate then made brief findings regarding the complementary protection criterion in s 36(2)(aa) of the Act. Considering the country information referred to in the delegate’s s 36(2)(a) assessment referred to above, the delegate found that there were “not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there [was] a real risk the [appellant would] suffer significant harm”.

The Tribunal’s decision

24    No issue arises on appeal with respect to the Tribunal’s identification of the criteria for a protection visa under s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth), at T[7]–[10], as well as the alternative bases under the complementary criterion, pursuant to s 36(2)(aa), at T[11], and the mandatory considerations set out in Ministerial Direction No. 56 (as was then applicable), at T[12].

25    In the appellant’s written submissions before the Tribunal, she identified seven bases for review of the delegate’s decision, particularly concerning the “re-prosecution claim”, which are summarised as follows.

26    First, the delegate’s finding that the Department did not have evidence (besides the appellant’s husband’s written comments) to find that the illegal goods imported to Australia were from mainland China was made without adequate explanation, and a finding to the contrary should have been made given the appellant’s association with China.

27    Secondly, the delegate’s finding that the three-month delay between the appellant seeking an injunction to prevent her removal from Australia and her application for the protection visa suggested a “strategic attempt to prolong her stay in Australia” was illogical. The appellant submitted that given the dissent in her Full Federal Court appeal regarding the non-revocation of her Spouse visa, she had reasonable prospects of success in appealing the decision in the High Court.

28    Thirdly, the delegate’s finding that the absence of active attention and pressure from Chinese authorities on the appellant is reasonable evidence that she is not of adverse interest to them ignored the context of the appellant’s circumstances. Given the Department had contacted the Chinese Embassy in Australia to arrange for the appellant to be removed to China, it makes “little sense” that the Chinese authorities would pressure the appellant to return to China when the Department is liaising with Chinese officials regarding the appellant’s removal from Australia.

29    Fourthly, the delegate’s finding that it is difficult to imagine Chinese authorities expending resources to pursue and re-try someone who is a one-time, relatively low-level, non-violent offender should be rejected, as the delegate failed to have regard to findings made by the Tribunal in relation to the appellant’s challenge to a delegate’s non-revocation decision.

30    Fifthly, the delegate’s finding that the offences for which the appellant was convicted of in Australia no longer attract the death penalty in China was incorrect. Article 125 of the Criminal Law of China demonstrates that an individual who “trades in”, “transports” or “mails or stores any guns, ammunition” may receive the death penalty.

31    Sixthly, the logic behind the delegate’s finding that there was no evidence that China sought Australia’s help to return the appellant to China was fundamentally flawed, given China only found out about the appellant’s criminal history after the Department informed the Chinese Embassy. Accordingly, China did not have to take steps to have the appellant removed from Australia.

32    Seventhly, the delegate’s finding that, given the appellant’s sentence of imprisonment in Australia was less than three years, it was less likely that she would be of adverse interest to Chinese authorities, misconstrued the country information and the Criminal Law of China. The appellant’s crimes in Australia carry an imprisonment sentence of more than three years in China, according to arts 125 and 128 of the Criminal Law of China. The appellant submitted it was difficult for the delegate to reasonably form the view that her offending is not serious or otherwise will not be of concern to Chinese authorities.

33    The Tribunal identified the main issue before it as being “whether [the appellant] was entitled to protection in Australia as a refugee or, if not, on complementary protection grounds”: at T[13]. The Tribunal then summarised the claims the appellant made to the Department (at T[15]–[24]), the evidence before the delegate (at T[25]–[36]), and the evidence before the Tribunal: at T[37]–[74].

34    When considering the evidence before it, the Tribunal considered the appellant’s claim that she would face the death penalty in China due to the offences she had been convicted of in Australia: see, e.g., T[16]. Relevant to ground 2 of this appeal, the Tribunal made reference to “independent reporting” (namely, a report published by the Hong Kong Free Press) regarding prison sentences imposed in China for weapons offences as follows (at T[43]):

I found the following report from the Hong Kong Free Press:

New amendments to the criminal law in China, which abolished the death penalty for nine crimes and criminalised behaviour such as spreading false rumours on the internet, will take effect from November 1.

China’s Ninth Amendment to the PRC Criminal Law was adopted on August 29. According to the National People’s Congress, the death penalty has been removed for crimes such as smuggling weapons, counterfeiting currency, raising funds by means of fraud, forcing another person to engage in prostitution; obstructing a police officer, and fabricating rumors to mislead others during wartime. Convicted offenders will now face a maximum sentence of life imprisonment.

(Footnotes omitted.)

35    However, the Tribunal consulted the Criminal Law of China which stated that the trading in guns, ammunition or explosives included in serious circumstances the death penalty (at T[45]):

Chapter II exhaustively lists “Crimes of Endangering Public Security” and it is here that one finds the Article 125 as set out in the pre-hearing submission cited above:

Article 125 Whoever illegally manufactures, trades in, transports, mails or stores any guns, ammunition or explosives shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.

Whoever illegally trades in or transports nuclear materials shall be punished according to the provisions of the preceding paragraph.

Where a unit commits any of the crimes mentioned in the preceding two paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the first paragraph.

36    The Tribunal reasoned that the appellant’s activities would “fall short” of being serious and it was unlikely that the Chinese Government would commit resources for her re-prosecution in the circumstances (at T[46]):

I note from the above that in order for the offence to attract the death penalty, the “circumstances [must be] serious” although the requisite seriousness is not clearly codified. However, the law here appears to indicate explicitly that trafficking in nuclear material, at least, would be regarded as serious, and [the appellant’s] activities fall far short of that. Article 125, I note, also deals with the manufacturing, trading in, transporting of, mailing or storing of guns, ammunition and, arguably more seriously, explosives. From the point of view of factors triggering re-prosecution, which is reportedly rare in China in any event, [the appellant] has already served three years in jail, which is at the lower end of the penalty range prescribed under Article 125, the sentence arguably applicable to less serious breaches of that Article. On the basis of [the appellant] already having served three years in jail abroad, and bearing in mind that re-prosecutions are called for when sentences abroad are deemed to be inadequate by Chinese standards (see Article 10 of the Criminal Law of the People’s Republic of China, as cited in the submission above), she asserts that Chinese authorities will seek to have her serve at least a few more years jail time. The delegate, meanwhile, concluded that the Chinese authorities would be most unlikely to commit resources for the sake of those few extra years. Relevant to this, I note from independent reporting cited below that an appeal court radically reduced the jail sentence originally imposed in the matter of replica guns smuggled into China from Taiwan.

37    The Tribunal thereafter considered other possible characterisations under Chinese law of the appellant’s activities, including the crime of “smuggling” under art 125: at T[51]. It was in this context that the Tribunal referred to the South China Morning Post article about which ground 2 of this appeal relates. This portion of the Tribunal’s reasons is considered in more detail below when considering this ground. The Tribunal notes in this respect, at T[53]:

The preceding article not only provides evidence of Chinese authorities recently engaging in a significantly heightened campaign against gun smuggling and possession, but also gives some indication of what quantities of prohibited guns attract what penalties. The penalty for smuggling replica firearms in excess of twenty items appears to have been reduced since 2015 to seven years in jail. The number of items smuggled by [the appellant] appears to have been in excess of one hundred. However, the delegate relied on two factors: the evident lack of interest in [the appellant] on the part of Chinese authorities, and the quality of evidence to the effect that the smuggling ever originated in China as claimed.

38    Given what the delegate had taken into account to counter the possibility of the appellant serving a prison term, identified in the preceding extracted paragraph, the Tribunal then considered the appellant’s response to the “evident lack of interest” in her by the Chinese authorities and the “quality” of the evidence as to whether the smuggled goods originated in China.

39    At T[58], the Tribunal considered the appellant’s submission that it was meaningless to look at the absence of evidence that the Chinese authorities were putting pressure on the appellant and her family to have her returned to China. The Tribunal noted, however, that Australian authorities had not approached Chinese authorities for a travel document for the appellant until 2019. In the Tribunal’s view, this cast doubt on the appellant’s submission in April 2020 that Chinese authorities had already been relying on her deportation for several years.

40    The Tribunal then considered and addressed the following other matters raised by (or in support of) the appellant:

(1)    That the police had visited her brother in 2019. The Tribunal found that “there appeared to [sic] no pressure in the visit” and that the questions they allegedly asked “appear[ed] to be disconnected from reality in that in both versions they were seeking information that already was, or would be, available to them”: at T[58].

(2)    That she would be arrested, tried and imprisoned upon her return. The Tribunal put material to the appellant that said that “re-prosecutions in China are ‘extremely rare’”, to which she responded that her opposing views were based on her knowledge about Chinese law and that alternate views to hers were from reporters outside of China who were not well informed: at T[59].

(3)    That the shipment of smuggled goods originated in China, rather than Hong Kong. The Tribunal noted that the appellant had not provided evidence of this, and that the evidence that the appellant claimed to have but could not provide did not appear to have been adduced in the criminal case against her. The Tribunal also concluded that statements by the appellant’s husband about the appellant’s ability to contact people in China did not support the specific claim that the shipment had originated there and, in any case, that her husband had previously been found to be an unreliable witness by the sentencing judge and, in other proceedings, before the Tribunal: at T[60]–[62], [64].

(4)    That she would be subject to the death penalty in China. The Tribunal put to the appellant that weapons smuggling no longer attracted the death penalty in China. The appellant responded that her offence would carry a particular form of suspended death sentence, and that she would be executed in any event: at T[63].

(5)    That her crime would be regarded by Chinese authorities as “political”. In response to the Tribunal’s suggestion that it was difficult to see how her crime was a “political” one, the appellant said that it would be regarded as such because of her support of Falun Gong and because of the activities of the Australian government to deport her: at T[65].

(6)    Her level of involvement with Falun Gong and the reasons for her loss of employment. The appellant said that she had been involved in printing Falun Gong pamphlets for a friend to distribute between 2005 and 2007, before receiving a warning letter in October 2007 and subsequently losing her job. The Tribunal enquired about the timing of these events, describing it as “odd” that, even though she said she had stopped printing pamphlets after receiving the letter, she still lost her job afterwards and was apparently still able to leave China unimpeded. At the relevant time, according to DFAT information quoted by the Tribunal, Falun Gong practitioners faced serious consequences for their involvement with the movement, including imprisonment, surveillance and discrimination. The Tribunal noted that this did not seem consistent with the appellant’s experiences. The Tribunal also questioned the authenticity of the letter, though the appellant insisted that it was not forged: at T[66]–[70].

(7)    That she had been allowed to travel into and out of China without being arrested because her husband was an Australian. The Tribunal regarded this explanation of the Chinese authorities’ lack of interest in the appellant during her travel to and from China as unsatisfactory: at T[71].

(8)    That she was a Christian. The Tribunal noted that the appellant did not make any claims in relation to her alleged interest in Christianity: at T[72].

(9)    Her husband’s submission in support of her application, including its reference to China’s “social credit system”. The appellant’s husband wrote a statement in support of his wife expressing remorse for their crimes and noting, among other things, that the consequences of her deportation would be especially serious because of China’s social credit system. The Tribunal noted that it had regard to this submission, especially its reference to the social credit system: at T[73]–[74].

Section 36(2)(a) findings

41    The Tribunal then made findings in relation to s 36(2)(a) of the Act, considering whether the appellant had a “well-founded fear of persecution” under s 5J(1).

42    Having first considered the appellant’s claims arising out of her alleged affiliation with the Falun Gong movement, the Tribunal then considered the appellant’s claims regarding the treatment she would be subject to by Chinese officials due to her criminal activities in Australia, as well as whether she would face re-prosecution for those offences, and made the following findings:

92.     Arising from this, I do not accept that, in the event of the Chinese authorities being aware of the specifics of [the appellant’s] smuggling offences, they view her offences as serious, or more serious, or “political” because of the Falun Gong factor. Also, I do not accept that the Chinese authorities have already shown [the appellant’s] family that they have any interest in her whereabouts, let alone her offences abroad. In addition, I do not agree with the submission to the effect that, because [the appellant] has become known to Chinese authorities as a person who Australian authorities wish to deport, this on its own gives her a “political” profile that will cause Chinese authorities to treat [the appellant] as a “more serious” offender and therefore give more consideration to re-prosecuting her after she returns to China.

93.    In light of the above findings, I find reason to be cautious about relying [sic] such thinly made-out claims as those regarding the Chinese government believing or suspecting [the appellant’s] crimes to have been committed in Chinese territory. Apart from assertions by [the appellant] and her husband, all documentary evidence before me indicate [sic] that the crime originated in the unique and separate jurisdiction of Hong Kong. When I asked [the appellant] what evidence there was beyond the words of her husband and herself that her role in smuggling goods from China, as she claimed, was known to Chinese authorities, she merely referred me to a computer and mobile telephone confiscated by Australian police. However, she evidently told the delegate that the information about China’s interest in the operation, and its alleged origins in Chinese territory, was located in a document produced by Hong Kong authorities that her husband had purportedly seen. Whereas I accept that illicit factories do manufacture weapons including prohibited air rifles and replica firearms in China, that in itself does not mean that [the appellant’s] name appeared in Chinese documents relating to their export from China to Hong Kong. Ultimately, I am not satisfied on the evidence before me that Chinese authorities have any evidence, or have shown any concern, to the effect that [the appellant] is connected with procuring illegal weapons in China and smuggling them out of that country, notwithstanding that her name was provided to Hong Kong authorities as the recipient of the deliberately misidentified goods that were to be, and were, shipped from there to Australia. Having considered these facts, I do not accept that [the appellant] faces a real chance of being reprosecuted in China.

94.     In the alternative, say, in the event that Chinese authorities believe they have evidence or otherwise suspect that [the appellant’s] offending started in China rather than Hong Kong or, say, Taiwan, where such crimes have reportedly originated, I still find on the independent evidence before me that [the appellant’s] chance of being re-prosecuted in China is remote. She is not a high-profile person in China. There has been no pressure exerted on her family to encourage her to return. She pleaded guilty to the offending in Australia and has already been handed a three-year custodial sentence here. Although the scale of her offending would be regarded in China as being somewhat serious, independent evidence cited above indicates that penalties have dropped in recent years, with the dropping of the death penalty and, as seen in a specific case of the smuggling [sic] dozens of replica firearms into China, with the reduction of an originally-imposed life sentence to imprisonment of only seven and a half years. Other evidence cited above strongly suggests that Chinese authorities would not devote resources to adding what might at best be just a couple of years to the time [the appellant] has already served abroad. As stated in material she herself submitted to the Department, “the risk of re-prosecution in China [is] extremely rare and, without aggravating factors, [falls] below the level required to engage international protection.” Also, considered alongside the same material, [the appellant’s] profile does not have any of the characteristics capable of amounting to “aggravating factors” such as where “there has been a substantial amount of adverse publicity within China about [her] case,” or where she “has significantly embarrassed the Chinese authorities by [her] actions overseas, or where the offence is “usually [sic] serious” (Article 151 and recent sentencing in China both indicate that there are much more serious smuggling offences that [the appellant’s]), where there are “political factors,” which I have found not to exist in this case, may increase the likelihood of prosecution or reprosecution; and where “the Chinese Government is also particularly concerned about corruption.”

95.     I accept that [the appellant] might be questioned and/or monitored in China but I am not satisfied on the evidence before me that this would amount to persecution.

96.    I also accept that [the appellant] may attract somewhat of a deficit in China’s newly-established social credit system but, on the evidence before me, the discrimination and inconveniences that would accrue from this would not amount even cumulatively to persecution.

43    Given the Tribunal’s findings, it concluded that the appellant did not face a real chance of being persecuted in China in the “reasonably foreseeable future or [sic] any of the reasons in s.5J(1)(a) of the Act. Her claimed fear of being persecuted in China is not well founded. She is not a refugee”: at T[97]. Given the same, the Tribunal concluded that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Section 36(2)(aa) findings

44    Given the appellant did not satisfy the refugee criterion in s 36(2)(a), the Tribunal then considered the complementary protection criterion under s 36(2)(aa) of the Act.

45    After identifying the receiving country for the appellant as China (at T[105]), the Tribunal identified the claimed harm as being “the death penalty”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”: at T[106]. The Tribunal noted that the appellant’s complementary protection claims were “essentially the same as her refugee status claims”: at T[107]. The Tribunal reiterated that those claims failed for a number of reasons, including “lack of credibility and, ultimately, lack of a real chance of being persecuted”: at T[107]. As such, the Tribunal found that the appellant’s complementary protection claims were similarly unsuccessful, and made the following remarks:

108.     [The appellant] and her husband have also made claims about the emotional [sic] severe emotional impact of her being removed from Australia and thus being forcibly separated by Australian authorities from her husband, son and grandchildren. I find in this no evidence of an intention on the part of Australian authorities to cause harm. However, I recognise, though the matter is outside the Tribunal’s jurisdiction, that social and emotional interests of Australian citizens could be negatively affected.

109.     Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the appellant] will suffer significant harm.

110.     Accordingly, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

The FCCA’s decision

46    The appellant lodged her application for judicial review of the Tribunal’s decision before the FCCA on 18 May 2020: at J[48].

47    The appellant advanced three grounds of review before the FCCA (which are now re-pressed on appeal in ground 1), which the primary judge identified as follows (at J[58]):

1.     The tribunal erred and misconstrued a claim advanced by the applicant, the amount of time served in prison for her offending in Australia that [sic] tantamount to a failure to consider claim made by the applicant at [46].

See, Minister for immigration and citizenship v SZKRT [2013] FCA 317 [113] Robertson J

2.     The decision of the tribunal is legally unreasonable and / or irrational and / or otherwise illogical when construing Article 125 of the criminal law of the People’s Republic of China at [46]

Particulars

a.     that the applicant’s criminality in Australia would not be regarded as serious because the applicant did not involved [sic] in the trafficking of Nuclear materials, such finding lacks an intelligible justification and the tribunal [sic] committed the fallacy of a “red herring”. The introduction if [sic] irrelevant topic is to diverts [sic] attention away from Article 125 of the Chinese criminal law thereby fall [sic] into jurisdictional error:

b.     The Tribunal found that the chance of the applicant being re-prosecuted in china [sic] is remote at [94] and that there has been no pressure exerted on the applicant’s family by the china [sic] authorities to encourage her to return at [94]. This reasoning is devoid of intelligible justification in circumstances where the Australian government is in the process of deporting the applicant to China. In this context, there is no necessity for the Chinese authorities to place pressure on the applicant’s family in an attempt to force the applicant to return to China.

See, Minister for immigration and citizenship v SZMDS [2010) [sic] HCA; 240 CLR 611, Crennan and Bell JJ at [135]

3.     Tribunal [sic] denied the applicant procedural fairness [sic] the entitlement to rebut (by way of submissions) concerning the South China morning post Article, where the exercise of a statutory power attracts the requirements for procedural fairness. By relying upon the impugned article to form certain adverse conclusions at [46], [53], & [94] of the tribunal decision.

See, Commissioner for Australian capital territory revenue v Alphaone Pty ltd (1994) 94 FCR 576 at 591-592.

(Emphasis in original.)

48    The primary judge acknowledged that the appellant had advanced written submissions, and noted that the Court took them into account: at J[49]. The primary judge then proceeded to summarise the arguments advanced by the appellant as follows:

50.     The applicant maintained that the crimes she had committed in relation to her smuggling of weapons into Australia was [sic] serious and would be treated by the Chinese authorities as serious. This is, in substance, an invitation to this Court to engage in merits review.

51.     The Tribunal expressly considered the circumstance of the applicant’s offence and gave logical and rational reasons in support of the adverse finding on the applicant’s claims of a risk of double jeopardy or re-prosecution. Those adverse findings cannot be said to lack an evident and intelligible justification, including a low profile of the applicant, the applicant not falling into the categories identified in relation to re-prosecution, and the absence of pressure being placed on the applicant’s family for the purpose of her to return to be prosecuted.

52.     The applicant’s contention that the crime she committed was serious does not give rise to any jurisdictional error and, merely reflects a disagreement with the adverse findings by the Tribunal, which were open for the reasons given by the Tribunal.

53.     The applicant also made reference to her role in Falun Gong, which the Tribunal rejected on credibility grounds, having given logical and rational reasons, as summarised above, in support of those adverse findings.

54.     There was a minor typographical error in the Tribunal’s reasons in relation to country information at one point, referring to ‘usually serious’ which clearly was a typographical error. The Tribunal correctly identified in its reasons that the correct consideration was ‘unusually serious.’

55.     The error in relation to the reference to the country information which the Court has identified as a typographical error does not give rise to any possible different outcome in the review and does not amount to a jurisdictional error.

56.     The applicant also referred to her son and not wanting to leave her family and that she did not want to go back and said that she would not go back. The applicant also submitted to the Court that she was sorry for what she had done in relation to the smuggling. The applicant’s submissions in this regard, invite the Court to determine the matter on compassionate or discretionary grounds. The Court has no power to do so.

57.     Nothing said by the applicant orally identified any jurisdictional error by the Tribunal.

49    The primary judge then made findings with respect to each ground of review advanced by the appellant.

50    With respect to ground one, the primary judge held that the Tribunal’s error relating to the term of imprisonment served by the appellant “was not material”, and that the Tribunal “correctly identified later in its reasons that the applicant had been the subject of a sentence amounting in total to three years”. His Honour held that the error “was of no significance”, and could not have given rise to a different outcome before the Tribunal: at J[59]. Given the same, the primary judge held that no jurisdictional error arose by reason of the Tribunal stating that the appellant had served three years in prison (rather than being “sentenced to”), and no jurisdictional error was made out: at J[60]–[61].

51    With respect to ground two, the primary judge held that the Tribunal had expressly considered art 125 of the Criminal Law of China and made adverse findings in relation to the appellant’s conduct which did not fall into the category of ‘serious’ as it did not involve an offence of the kind “such as trafficking nuclear materials”. With respect to the Tribunal considering the trafficking of nuclear materials as an example of an “unusually serious offence” that may give rise to re-prosecution, the primary judge held that this was a “logical and rational matter to take into account”: at J[66].

52    His Honour also held that the Tribunal took into account the circumstances in which there would be a risk of re-sentencing, and noted that the Tribunal found that the appellant did not fall within those categories: at J[62]. Therefore, the Tribunal’s finding that the appellant’s offences were not of a kind that gave rise to a real risk of re-prosecution was open to the Tribunal: at J[63].

53    Further, the primary judge held that it was logical and rational for the Tribunal to take into account “[t]he absence of pressure on the applicant’s family for her to return to be prosecuted”. The primary judge held that the Tribunal raised this issue with the appellant, and took into account her submissions: at J[64].

54    The primary judge concluded by finding that the Tribunal’s reasons reflect a “genuine intellectual engagement with the appellant’s claims and evidence” in relation to her claimed real chance or risk of being prosecuted, or re-prosecuted, in China. The primary judge held that this aspect of ground 2 amounted to “an invitation to engage in merits review”: at J[65]. Given the above, the primary judge found that ground two did not establish jurisdictional error: at J[67].

55    Finally, with respect to ground three, the primary judge held that it was “a matter for the Tribunal to determine what country information it took into account” and what weight it gave to the country information. Pursuant to s 424A(3) of the Act, the Tribunal was not obliged to put the country information to the appellant: at J[68]. Given the same, the primary judge held that the appellant was not denied procedural fairness by reference to the article published in the South China Morning Post, and no jurisdictional error was made out: at J[69]–[70].

56    Given none of the appellant’s grounds amounted to jurisdictional error, the primary judge dismissed the appellant’s application. It is this decision that is the subject of this appeal and the draft amended notice of appeal.

Amended notice of appeal

57    In the appellant’s amended notice of appeal, for which I have granted leave, the appellant advances two grounds of appeal:

1.     The primary judge erred by failing to give active, intellectual consideration to the written submissions filed on behalf of the appellant dated 10 August 2020.

Particulars

a.     The primary judge dealt with the three grounds of judicial review advanced by the Appellant in her originating application at [59]-[70] of the primary judgment.

b.     The reasons given by the primary judge in respect of each of the three grounds of review did not reflect any active, intellectual consideration of the arguments advanced by way of her written submissions dated 10 August 2020 (filed on 11 August 2020).

c.     Had the primary judge properly considered the submissions advanced in respect of each of the three grounds of review raised in the court below, the primary judge may have reached a different view as to whether any of the three grounds of review disclosed jurisdictional error on the part of the Second Respondent, such that it attracted the relief sought by the Appellant.

d.    The error referred to in (a)-(b) above was material to the outcome of the decision to dismiss the Appellant’s application for judicial review.

2.     The primary judge erred by failing to find that the Second Respondent (the Tribunal) had not complied with s.425(1) of the Migration Act 1958 (Cth) (the Act).

Particulars

a.    In dismissing Ground 3 of the originating application, the primary judge found (at [68] of the primary judgment) that the Tribunal was under no obligation under s.424A(3) of the Act to put country information (the South China Morning Post article, referred to at [46], [53] and [94] of the Tribunal’s decision) that it independently obtained to the Appellant for comment, and that no procedural unfairness arose.

b.     In making the finding referred to above in (a), the primary judge failed to consider that there had been a breach of the statutory obligation to give the Appellant a meaningful opportunity to give evidence and present arguments relating to the decision under review by reason of s.425(1) of the Act.

c.     The South China Morning Post article and its contents were not the subject of substantive discussion at the hearing held by the Tribunal on 15 April 2020.

d.     The error referred to in (a)-(b) above was material to the outcome of the decision to dismiss the Appellant’s application for judicial review.

(Emphasis in original.)

Relevant principles and legislative provisions

58    Section 36 of the Act sets out the criteria a protection visa applicant must satisfy. It is extracted as follows (as made at the time of the appellant’s visa application):

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).

(1B)     A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)     A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)     is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:     For paragraph (b), see section 5M.

(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; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)     is mentioned in paragraph (a); and

(ii)     holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)     is mentioned in paragraph (aa); and

(ii)     holds a protection visa of the same class as that applied for by the applicant.

(2A)     A non-citizen will suffer significant harm if:

(a)     the non-citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non-citizen; or

(c)     the non-citizen will be subjected to torture; or

(d)     the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non-citizen will be subjected to degrading treatment or punishment.

(2B)     However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)     the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

(2C)     A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)     the Minister has serious reasons for considering that:

(i)     the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)     the non-citizen committed a serious non-political crime before entering Australia; or

(iii)     the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b)     the Minister considers, on reasonable grounds, that:

(i)     the non-citizen is a danger to Australia’s security; or

(ii)     the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

(3)     Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4)     However, subsection (3) does not apply in relation to a country in respect of which:

(a)     the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)     the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5)     Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a)     the country will return the non-citizen to another country; and

(b)     the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A)     Also, subsection (3) does not apply in relation to a country if:

(a)     the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b)     the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

Determining nationality

(6)     For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7)     Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

(Emphasis in original.)

59    Division 4 of Pt 7 of the Act outlines how a review by the Tribunal of a “Part 7-reviewable decision” should be undertaken. Section 422B provides an exhaustive statement of the natural justice hearing rule as follows:

422B     Exhaustive statement of natural justice hearing rule

(1)     This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)     Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)     In applying this Division, the Tribunal must act in a way that is fair and just.

60    Section 424A of the Act prescribes when the Tribunal must invite an applicant to comment or respond to information that it considers would be the reason, or a part of the reason, as to why a decision under review should be affirmed. That provision is extracted as follows:

424A     Information and invitation given in writing by Tribunal

(1)     Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)     The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)     The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)     that is non-disclosable information.

(4)     A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

61    Section 425 of the Act identifies the circumstances in which the Tribunal must invite an applicant to appear before it. That provision, as at the time of the appellant’s visa application, is extracted as follows:

425     Tribunal must invite applicant to appear

(1)     The 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.

(2)     Subsection (1) does not apply if:

(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)     subsection 424C(1) or (2) applies to the applicant.

(3)     If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Consideration

Ground 1: The primary judge failed to identify jurisdictional error arising from the appellant’s unsuccessful grounds of review

62    By the pleaded ground 1, the appellant contended that the primary judge failed to give “active intellectual consideration” to the appellant’s written submissions, purportedly relying on: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [83] per McKerracher J, citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [43]–[47]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [45]–[47]. Those decisions concern the level of engagement required of decision-makers or the Tribunal and not what is required of a judge when exercising his or her powers of judicial review. Regardless, the phrase “active intellectual consideration” has itself been the subject of judicial criticism by the High Court as a formula which poses a danger of entering merits review: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26].

63    The appellant’s submission at hearing was that, when looking at the primary judge’s reasons with respect to each ground, at J[59]–[70], his Honour concluded, devoid of reasoning, that there was no jurisdictional error. I do not accept this submission accurately characterises the primary judge’s reasons. The Minister submits that the primary judge took into account the appellant’s written submissions and dealt with and disposed of the grounds of review advanced before him (albeit concisely): see J[49], [59]–[70].

64    I accept the Minister’s submission that, as crafted, this ground fails to identify with sufficient precision, the alleged error(s) within the primary judge’s reasons. Even if the primary judge had constructively failed to exercise jurisdiction by failing to provide adequate reasons, it would be necessary to show that the Tribunal’s decision was affected by jurisdictional error, as argued by grounds 1 and 2 of the application below because it would be otherwise futile to remit the proceedings to the FCCA.

65    Accordingly, I accept the Minister’s contention that this ground of appeal is deficient in that it fails to allege that the primary judge erred in failing to uphold any of the grounds of review advanced in the FCCA or otherwise exhibiting jurisdictional error and must fail.

66    At hearing, the appellant essentially recrafted ground 1, to contend that the first ground of appeal involved a restatement of the unsuccessful grounds of review (comprising purported errors of jurisdiction) which had been made before the primary judge. The appellant submitted that the primary judge erred by failing to find that the Tribunal had erred by reason of the following: (a) the Tribunal had committed an error of fact (constituting jurisdictional error) when finding at T[46] the appellant had “already served three years in jail”, when in fact she had only served 12 months imprisonment; (b) the Tribunal’s decision was legally unreasonable, illogical and otherwise irrational when construing art 125 of the Criminal Law of China and concerning the remoteness of the appellant being re-prosecuted; and (c) the Tribunal denied her procedural fairness by relying on independent reporting regarding other smuggling cases in the South China Morning Post and not providing her with a chance to comment. The latter constitutes the second ground of appeal.

67    I appreciate that there was irregularity in the appellant’s approach and what she ultimately argued was not properly articulated in her amended notice of appeal (which it should have been), a practice which should not be encouraged. However, I am grateful for the pragmatic approach taken by the Minister’s counsel, Ms Hooper, in foreshadowing this approach, providing additional submissions in advance and being nimble on her feet, such that the hearing could proceed on the re-crafted footing.

68    As to the first alleged error (ground 1 below), the appellant submitted that the Tribunal’s factual error (accepted by the Minister to be a factual error), as to the time served in prison by the appellant, infected its reasoning as to whether there was a real chance of the appellant being re-prosecuted in China for the crimes committed in Australia. The error was identified, at T[46], and as part of the Tribunal’s ultimate reasoning at T[94]. Both paragraphs are extracted as follows:

46.     I note from the above that in order for the offence to attract the death penalty, the “circumstances [must be] serious” although the requisite seriousness is not clearly codified. However, the law here appears to indicate explicitly that trafficking in nuclear material, at least, would be regarded as serious, and [the appellant’s] activities fall far short of that. Article 125, I note, also deals with the manufacturing, trading in, transporting of, mailing or storing of guns, ammunition and, arguably more seriously, explosives. From the point of view of factors triggering re-prosecution, which is reportedly rare in China in any event, [the appellant] has already served three years in jail, which is at the lower end of the penalty range prescribed under Article 125, the sentence arguably applicable to less serious breaches of that Article. On the basis of [the appellant] already having served three years in jail abroad, and bearing in mind that re-prosecutions are called for when sentences abroad are deemed to be inadequate by Chinese standards (see Article 10 of the Criminal Law of the People’s Republic of China, as cited in the submission above), she asserts that Chinese authorities will seek to have her serve at least a few more years jail time. The delegate, meanwhile, concluded that the Chinese authorities would be most unlikely to commit resources for the sake of those few extra years. Relevant to this, I note from independent reporting cited below that an appeal court radically reduced the jail sentence originally imposed in the matter of replica guns smuggled into China from Taiwan.

…

94.     In the alternative, say, in the event that Chinese authorities believe they have evidence or otherwise suspect that [the appellant’s] offending started in China rather than Hong Kong or, say, Taiwan, where such crimes have reportedly originated, I still find on the independent evidence before me that [the appellant’s] chance of being re-prosecuted in China is remote. She is not a high-profile person in China. There has been no pressure exerted on her family to encourage her to return. She pleaded guilty to the offending in Australia and has already been handed a three-year custodial sentence here. Although the scale of her offending would be regarded in China as being somewhat serious, independent evidence cited above indicates that penalties have dropped in recent years, with the dropping of the death penalty and, as seen in a specific case of the smuggling [sic] dozens of replica firearms into China, with the reduction of an originally-imposed life sentence to imprisonment of only seven and a half years. Other evidence cited above strongly suggests that Chinese authorities would not devote resources to adding what might at best be just a couple of years to the time [the appellant] has already served abroad. As stated in material she herself submitted to the Department, “the risk of re-prosecution in China [is] extremely rare and, without aggravating factors, [falls] below the level required to engage international protection.” Also, considered alongside the same material, [the appellant’s] profile does not have any of the characteristics capable of amounting to “aggravating factors” such as where “there has been a substantial amount of adverse publicity within China about [her] case,” or where she “has significantly embarrassed the Chinese authorities by [her] actions overseas, or where the offence is “usually [sic] serious” (Article 151 and recent sentencing in China both indicate that there are much more serious smuggling offences that [the appellant’s]), where there are “political factors,” which I have found not to exist in this case, may increase the likelihood of prosecution or reprosecution; and where “the Chinese Government is also particularly concerned about corruption.”

69    The appellant submitted, repeating her FCCA submissions, that she “had contended that because she had only actually served 12 months imprisonment, this sentence would be perceived by the Chinese authorities as largely insufficient comparable to the seriousness of [her] criminality” (emphasis added). By this alleged misconstruction, the error was tantamount to a failure to consider the claim and, on this basis, constitutes jurisdictional error.

70    For a factual error to lead to a jurisdictional error, the decision must have been made outside the scope of the authority conferred by statute: BGW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1569 at [39], per Hespe J, citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [23]. A “mere factual error” will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error: BGW22 at [42] citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [53] and CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493 at [31]. At the very least the error of fact must be one that is a critical step in making the decision under review: BGW22 at [43], citing SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19] and SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [113].

71    As a consequence, it is necessary to consider the whole of the Tribunal’s reasons to determine whether the factual error grounds jurisdictional error.

72    Whilst there is a clear factual error in T[46], it is also the case that the Tribunal had considered the appellant’s submission where despite the length of her sentence, she had only served 12 months’ imprisonment. This is apparent from the Tribunal’s consideration of the appellant’s submissions, extracted at T[39], and in particular [19]–[21] of these submissions, which were as follows:

19.     The applicant received a head sentence of two years and two months with a non-parole period of 12 months. There is a real prospect that Chinese authorities may find that the sentence imposed upon the applicant was insufficient or otherwise not heavy enough. This contention is further justified in circumstances where the applicant was not separately sentenced for the three matters reflected on Form 1 for the State offence (which were otherwise clearly serious matters).

20.     That the applicant only actually served 12 months imprisonment is likely to be perceived by the Chinese authorities as largely insufficient comparable to the applicant’s criminality.

In summary, it is more likely that the applicant will be re-sentenced on return to China for the following reasons:

•    Given the serious nature of the applicant’s offending;

•    The applicant did not receive a significant period of imprisonment;

•    Noting the maximum penalty for the impugned Commonwealth and State offences; and

•    The fact that the applicant was not sentenced separately for the three matters on the Form One.

21.     More severe punishment overseas is likely to attract a lesser punishment on return. As the applicant has received a less severe punishment in Australia for her offending she is more likely to attract a more substantial penalty on return to China.

73    It is relevant to then consider the later portion of the Tribunal’s reasons concerning its findings in relation to s 36(2)(a) of the Act, where the Tribunal “assess[es] the credibility of [the] applicant’s claim”: at T[77]. It is in this part of the Tribunal’s reasons that the Tribunal considers each of the bases upon which the appellant claimed she is likely to be the subject of harm, including because of her link to Christianity, her involvement with Falun Gong and the alleged contact made by Chinese officials with her family: at T[78]–[91].

74    It is worthwhile at this juncture extracting T[92]–[98] because this portion of the reasons sets out the relevant context for T[94] (the paragraph the appellant relies upon as purportedly evincing the erroneous consequential reasoning relying on the error at T[46]):

92.     Arising from this, I do not accept that, in the event of the Chinese authorities being aware of the specifics of [the appellant’s] smuggling offences, they view her offences as serious, or more serious, or “political” because of the Falun Gong factor. Also, I do not accept that the Chinese authorities have already shown [the appellant’s] family that they have any interest in her whereabouts, let alone her offences abroad. In addition, I do not agree with the submission to the effect that, because [the appellant] has become known to Chinese authorities as a person who Australian authorities wish to deport, this on its own gives her a “political” profile that will cause Chinese authorities to treat [the appellant] as a “more serious” offender and therefore give more consideration to re-prosecuting her after she returns to China.

93.     In light of the above findings, I find reason to be cautious about relying [sic] such thinly made-out claims as those regarding the Chinese government believing or suspecting [the appellant’s] crimes to have been committed in Chinese territory. Apart from assertions by [the appellant] and her husband, all documentary evidence before me indicate [sic] that the crime originated in the unique and separate jurisdiction of Hong Kong. When I asked [the appellant] what evidence there was beyond the words of her husband and herself that her role in smuggling goods from China, as she claimed, was known to Chinese authorities, she merely referred me to a computer and mobile telephone confiscated by Australian police. However, she evidently told the delegate that the information about China’s interest in the operation, and its alleged origins in Chinese territory, was located in a document produced by Hong Kong authorities that her husband had purportedly seen. Whereas I accept that illicit factories do manufacture weapons including prohibited air rifles and replica firearms in China, that in itself does not mean that [the appellant’s] name appeared in Chinese documents relating to their export from China to Hong Kong. Ultimately, I am not satisfied on the evidence before me that Chinese authorities have any evidence, or have shown any concern, to the effect that [the appellant] is connected with procuring illegal weapons in China and smuggling them out of that country, notwithstanding that her name was provided to Hong Kong authorities as the recipient of the deliberately misidentified goods that were to be, and were, shipped from there to Australia. Having considered these facts, I do not accept that [the appellant] faces a real chance of being reprosecuted in China.

94.     In the alternative, say, in the event that Chinese authorities believe they have evidence or otherwise suspect that [the appellant’s] offending started in China rather than Hong Kong or, say, Taiwan, where such crimes have reportedly originated, I still find on the independent evidence before me that [the appellant’s] chance of being re-prosecuted in China is remote. She is not a high-profile person in China. There has been no pressure exerted on her family to encourage her to return. She pleaded guilty to the offending in Australia and has already been handed a three-year custodial sentence here. Although the scale of her offending would be regarded in China as being somewhat serious, independent evidence cited above indicates that penalties have dropped in recent years, with the dropping of the death penalty and, as seen in a specific case of the smuggling [sic] dozens of replica firearms into China, with the reduction of an originally-imposed life sentence to imprisonment of only seven and a half years. Other evidence cited above strongly suggests that Chinese authorities would not devote resources to adding what might at best be just a couple of years to the time [the appellant] has already served abroad. As stated in material she herself submitted to the Department, “the risk of re-prosecution in China [is] extremely rare and, without aggravating factors, [falls] below the level required to engage international protection.” Also, considered alongside the same material, [the appellant’s] profile does not have any of the characteristics capable of amounting to “aggravating factors” such as where “there has been a substantial amount of adverse publicity within China about [her] case,” or where she “has significantly embarrassed the Chinese authorities by [her] actions overseas, or where the offence is “usually [sic] serious” (Article 151 and recent sentencing in China both indicate that there are much more serious smuggling offences that [the appellant’s]), where there are “political factors,” which I have found not to exist in this case, may increase the likelihood of prosecution or reprosecution; and where “the Chinese Government is also particularly concerned about corruption.”

95.     I accept that [the appellant] might be questioned and/or monitored in China but I am not satisfied on the evidence before me that this would amount to persecution.

96.     I also accept that [the appellant] may attract somewhat of a deficit in China’s newly established social credit system but, on the evidence before me, the discrimination and inconveniences that would accrue from this would not amount even cumulatively to persecution.

97.     Having considered all of the evidence in this matter it [sic] its entirety, I am not satisfied that [the appellant] faces a real chance of being persecuted in China [sic] the reasonably foreseeable future or [sic] any of the reasons in s.5J(1)(a) of the Act. Her claimed fear of being persecuted in China is not well founded. She is not a refugee.

98.     For the reasons given above, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

75    A review of this portion of the reasoning reveals that the Tribunal’s findings with respect to the Chinese authorities’ awareness of the specifics of the appellant’s smuggling offences, their views as to their seriousness, the existence of any political dimension to those views, their belief or suspicion as to whether they were committed in Chinese territory and, if they were, the chance of being re-prosecuted were multi-factorial. Further, the Tribunal found that, by reason of the absence of evidence, it was “not satisfied… that Chinese authorities have any evidence, or have shown any concern, to the effect that [the appellant] is connected with procuring illegal weapons in China and smuggling them out of that country”: at T[93]. By reason of this finding, the Tribunal did not accept that the appellant faces a real chance of being re-prosecuted. Accordingly, the fact of the appellant having being sentenced for and/or served a period of imprisonment did not factor in the Tribunal’s finding as to the absence of a real chance of being re-prosecuted in China.

76    The extent to which it did have bearing was only “in the alternative” that the Chinese authorities believed the appellant’s submission that her offending had started in China rather than Hong Kong: at T[94]. Further, here, the Tribunal correctly refers to the fact of the appellant being “handed a three-year custodial sentence” and notably there are many bases upon which the Tribunal found that the chance was “remote”, including that the appellant was not a high-profile person and her profile did not have any characteristics capable of being aggravating factors, there was no pressure on her family to encourage her return, noting the likelihood that the scale of her offending would be “somewhat serious” and independent evidence had indicated that penalties have dropped.

77    It is relevant to note the two portions of this paragraph that relate to her sentence. First, the reference to being “handed a three-year custodial sentence” and secondly, in the context of considering that the Chinese authorities would not “devote resources” to “adding what might at best be just a couple of years to the time [the appellant] has already served abroad”: at T[94] (emphasis added).

78    It appears clear that the Tribunal understood that the length of sentence and the time served, were different. This is because I note what the Tribunal had found at T[51] and T[52] respectively, under art 151, being a fixed term of “not less than three years but not more than seven years” (at T[51]), and in “independent reporting of a case in which a sentence [sic] 3 ½ years in prison was handed down”: at T[52]. It appears that the “adding” of a “couple of years” when reference was made by the Tribunal earlier to those sentences, is entirely consistent with the Tribunal understanding that only 12 months’ imprisonment had been served.

79    Regardless of whether this latter interpretation is open, I accept the Minister’s submission that the earlier factual error in T[46] had been effectively corrected, as it was not “picked up” and did not provide the foundation for the Tribunal’s ultimate findings. It was not material to the ultimate state of satisfaction.

80    As to the second purported error in the Tribunal’s reasons, it concerned the purported legal unreasonableness, illogicality or irrationality associated with the second sentence of T[46], namely where the Tribunal found: “[T]he law here appears to indicate explicitly that trafficking in nuclear material, at least, would be regarded as serious, and [the appellant’s] activities fall far short of that”.

81    The appellant, had submitted before the FCCA, and adopted those submissions on appeal, that there were two “defects” in this finding. First, art 125 does not expressly mandate that trafficking in nuclear material would be regarded as serious. Secondly, the Tribunal appeared to have reasoned implicitly that as the appellant was not involved in trafficking nuclear material, the appellant’s criminality in Australia would not be regarded as serious. Such reasoning purportedly “lack[ed] intelligible justification”.

82    I accept the Minister’s submission that art 125 does not codify what is meant by seriousness and does appear to indicate explicitly that the trafficking of nuclear material would be regarded as serious given its singling out in the article with the statement that such conduct “shall be punished according to the provisions of the preceding paragraph” (as can be seen from the extract at [35] above). I accept there could be a contrary interpretation that it was not “explicit” but accept it was an “open one”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130], [131] and [135]. I do not accept that it rises to the high threshold of being described as legally unreasonable, irrational or otherwise illogical.

83    In addition, the appellant made oral submissions with respect to the second particular of the second restated unsuccessful ground of review maintained before the primary judge namely that the Tribunal’s reasoning, at T[94], was also legally unreasonable, irrational and/or otherwise illogical when construing art 125 where (extracted from J[58]):

The Tribunal found that the chance of the applicant being reprosecuted in china [sic] is remote at [94] and that there has been no pressure exerted on the applicant’s family by the china authorities [sic] to encourage her to return at [94]. This reasoning is devoid of intelligible justification in circumstances where the Australian government is in the process of deporting the applicant to China. In this context, there is no necessity for the Chinese authorities to place pressure on the applicant’s family in an attempt to force the applicant to return to China.

See, Minister for immigration and citizenship v SZMDS [2010) [sic] HCA; 240 CLR 611, Crennan and Bell JJ at [135]

(Emphasis in original.)

84    The appellant had submitted the following before the Tribunal:

37.     The preceding finding made by the delegate entirely ignores the context of the applicant’s circumstances. The Department contacted the Chinese Embassy to make arrangements for the applicant to be ‘involuntarily removed’ to China on character grounds. Accordingly, Chinese authorities are aware that the applicant is being deported from Australia because of her criminal record. The Chinese authorities are also aware that the applicant’s Australian visa was cancelled in Australia (hence the need for the Department to approach the Chinese Embassy to obtain travel documents).

38.     It makes little sense that the Chinese authorities would place pressure on the applicant in an attempt to compel her to return to China, noting that that the Australian government is already undertaking that task through the ‘involuntary removal process’. By the Department liaising with the Chinese Embassy to bring about the deportation of the applicant to China, logically, there is no necessity for the Chinese authorities to adopt the ‘common method’ of applying government pressure. The delegate’s decision, with respect, fails to consider the applicant’s circumstances in context.

(Emphasis in original.)

85    At hearing the appellant submitted the following with respect to this ground. The appellant contested the primary judge’s reasons at J[64], where his Honour stated:

The absence of pressure on the applicant’s family for her to return to be prosecuted was also a logical and rational matter for the Tribunal to take into account and was an issue upon which the Tribunal raised the same with the applicant and took into account the submissions. 

86    The appellant repeated her unsuccessful submission that the purported illogicality in this reasoning was that the Tribunal (and thereafter the primary judge) did not appreciate that the lack of adverse attention from the Chinese authorities may have been due to the fact that she was already on a removal pathway following the cancellation of her Spouse visa under s 501 of the Act. Therefore, the authorities did not need to be interested in or pressure her to return because they knew she was coming back anyway.

87    The concept of legal unreasonableness may be deployed in two contexts, as identified by the Full Court in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [133] (per Wigney J):

(1)    A conclusion after the identification of a recognised species of jurisdictional error in the decision-making process (for example, failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration).

(2)    An “outcome focused” conclusion without any specific jurisdictional error being identified.

88    As to the latter, Wigney J acknowledged, at [134], that within the boundaries of the decision-maker’s power:

…there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.

89    This reasoning is poignant in this case.

90    Equally apt in this case is the reasoning of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21, where at [34]–[35] the Full Court considered the confines of the Court’s task in assessing illogicality:

34.    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35.    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

91    In this case, the Tribunal referred specifically in two parts of its reasons to the fact of the cancellation of the appellant’s Spouse visa.

92    At T[2], the Tribunal noted the following:

…Her spouse visa was cancelled on character grounds on 29 March 2017, due to a conviction relating to illegal importation of weapons including replica firearms… Between 2017 and 2019 she appealed all the way to the High Court for the overturning of her spouse visa revocation [sic], but without success.

93    Then at T[58], the Tribunal specifically referred to the appellant’s submission in this regard:

The 10 April 2020 submission argues that it is meaningless to look for evidence of the Chinese authorities putting pressure on [the appellant] and her family to have her return to China because, for several years, the Chinese authorities would have been aware that Australian authorities were in the process of removing her to China anyway, the implication being that the Chinese authorities only needed to wait for the Australian authorities to complete the process…

94    Thereafter the Tribunal provides an entirely logically reasoned basis for its view, which is set out as follows (at T[58]):

…However, the evidence before me indicates that the Australian authorities did not approach Chinese authorities for a travel document for [the appellant] until 2019, her previous passport having expired in 2015. In this light, it is hard to see how the Chinese authorities, as suggested in the 10 April 2020 submission, had already been relying for several years on [the appellant’s] eventually being deported. I acknowledge the claim about the authorities having made contact with [the appellant’s] brother in 2019, but there appeared to [sic] no pressure in the visit – a one-off visit at that -- and, again, given the authorities’ power to trace [the appellant’s] movements through her passport information and through Australian efforts to have a new travel document issued by them, the questions asked of [the appellant’s] brother, in either version of their alleged visit, appear to be disconnected from reality in that in both versions they were seeking information that already was, or would be, available to them.

95    Further, the Tribunal later found at T[91], that the claim about police visiting the appellant’s brother in 2019 was unreliable, as follows:

I also give no weight to the evidence of the other alleged contact made by Chinese officials with [the appellant’s] family; for reasons given in my discussion of the alleged visit above, and having regard to the unsatisfactory evidence about her discovered involvement with the Falun Gong movement, I find that the claim about police visiting [the appellant’s] brother in 2019 is unreliable.

96    To the extent that this ground of review challenges the correctness of the Tribunal’s reasoning from a factual perspective, the appellant’s then legal representative’s written submissions before the Tribunal were plainly considered at T[58] and at T[91] (where the claim about the police’s visit to the appellant’s brother is rejected as unreliable). To the extent that the challenge is “outcome focused”, while a different decision-maker might have approached the reasoning differently, that is insufficient to demonstrate jurisdictional error in the nature of illogical or irrational reasoning: BHL19 at [134]; Djokovic at [34]–[35].

97    Accordingly, however stated, ground 1, for the reasons stated above, must fail.

98    As to the third ground of review, restated on appeal, it is as encapsulated by ground 2 on appeal and is dealt with as follows.

Ground 2: Whether the Tribunal breached s 425 of the Act

99    The appellant contends that the primary judge erred by failing to find that the Tribunal had not complied with s 425 of the Act by reason of the following:

a.     In dismissing Ground 3 of the originating application, the primary judge found (at [68] of the primary judgment) that the Tribunal was under no obligation under s.424A(3) of the Act to put country information (the South China Morning Post article, referred to at [46], [53] and [94] of the Tribunal’s decision) that it independently obtained to the Appellant for comment, and that no procedural unfairness arose.

b.     In making the finding referred to above in (a), the primary judge failed to consider that there had been a breach of the statutory obligation to give the Appellant a meaningful opportunity to give evidence and present arguments relating to the decision under review by reason of s.425(1) of the Act.

c.     The South China Morning Post article and its contents were not the subject of substantive discussion at the hearing held by the Tribunal on 15 April 2020.

d.     The error referred to in (a)-(b) above was material to the outcome of the decision to dismiss the Appellant’s application for judicial review.

(Emphasis in original.)

100    As can be seen from the particulars, this ground’s focus is the Tribunal’s reliance on information from the South China Morning Post article.

101    In the context of considering the evidence before the Tribunal, the Tribunal, after extracting the appellant’s written submission in full, considers the appellant’s opposition to a part of the delegate’s decision in which she refers to the “November 2015 reform removing “smuggling of weapons and ammunition” from the list of penalties attracting execution in China”: at T[41]. The Tribunal then states that it “took the trouble independently to research the delegate’s reference to the November 2015 reform” (at T[42]) and extracts information from the Hong Kong Free Press and the Criminal Law of China, including citing the full reference to what is contained in art 125: at T[43]–[45].

102    The Tribunal then, still in the context of its consideration of the evidence, at T[46] (extracted in full at [68] above), considers art 125 and the likelihood of the appellant being re-prosecuted in China by reason of any perceived inadequacy “by Chinese standards” of her sentences abroad. Relevant to this ground of appeal is what the Tribunal says in the last two sentences of this paragraph, namely:

The delegate, meanwhile, concluded that the Chinese authorities would be most unlikely to commit resources for the sake of those few extra years. Relevant to this, I note from independent reporting cited below that an appeal court radically reduced the jail sentence originally imposed in the matter of replica guns smuggled into China from Taiwan.

103    The reference to the “independent reporting cited below” is a reference to what is contained at T[52], and about which there is relevant commentary at T[53]. Both paragraphs are extracted as follows:

52.     I note that enforcers of the law in China do not appear to distinguish between real and replica rifles and pistols. I have had regard to independent reporting of a case in which a sentence 3½ years in prison was handed down in 2016 in a case involving possession of nine air rifles31. In another case, dating back to 2015,

Liu Dawei from Sichuan province was sentenced to life imprisonment for buying 24 replica guns from an online supplier in Taiwan. Although the then 18-year-old believed the weapons to be fake he was convicted of smuggling weapons into the country after customs officers classified them as illegal firearms.

His sentence was commuted in December [2018] to seven years and three months, but his lawyer Xu Xin said his client would continue to fight for justice.32

53.     The preceding article not only provides evidence of Chinese authorities recently engaging in a significantly heightened campaign against gun smuggling and possession, but also gives some indication of what quantities of prohibited guns attract what penalties. The penalty for smuggling replica firearms in excess of twenty items appears to have been reduced since 2015 to seven years in jail. The number of items smuggled by [the appellant] appears to have been in excess of one hundred. However, the delegate relied on two factors: the evident lack of interest in [the appellant] on the part of Chinese authorities, and the quality of evidence to the effect that the smuggling ever originated in China as claimed.

31 “China set to launch 100-day crackdown on illegal firearms, deadly or otherwise,” South China Morning Post, 15 April 2019, https://www.scmp.com/news/china/politics/article/3006081/china-set-launch-100-day-crackdown-illegal-firearms-deadly-or

32 Ibid.

(Italics and footnotes in original. Bold added.)

104    This information was not before the delegate, and was not raised by the Tribunal at hearing nor after hearing with the appellant.

Competing positions

105    The appellant submits that s 425(1) of the Act requires the Tribunal to invite a review applicant to a hearing to give evidence and present arguments in relation to issues arising in relation to the decision under review. An invitation must be meaningful, such that an applicant is afforded an opportunity to present arguments and evidence in relation to that issue: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [36], [44] and [47].

106    The appellant submitted, below and now on appeal, that the Tribunal denied her procedural fairness by relying on independent reporting regarding other smuggling cases in the South China Morning Post article.

107    The appellant’s submissions below (and relied upon in this regard) were, relevantly:

27.     In paragraph [46] of the decision, the Tribunal held: ‘I note from independent reporting cited below that an appeal court radically reduced the jail sentence originally imposed in the matter of replica guns smuggled into China from Taiwan’. In that context, at paragraph [52] of the decision, the Tribunal outlined that ‘it had regard to independent reporting of the case in which a sentence of 3½ years in prison was handed down in 2016 in a case involving possession of nine rifles’. The Tribunal cited an article from the South China Morning Post of 15 April 2019 (see footnote 31 of the Tribunal’s decision).

28.     The Tribunal referred to another case (dated back to 2015), which was also apparently outlined in the South China Morning Post. In paragraphs [53] and [94] of the Tribunal’s decision, the Tribunal relied upon the impugned article to form certain adverse conclusions against the applicant (i.e. that penalties in China related to smuggling prohibited guns has reduced in recent years).

29.     Critically, the Tribunal did not put the impugned South China Morning Post material to the applicant to comment by way of submission. Accordingly, the applicant has been denied the entitlement to rebut (by way of submission) or place information before the Tribunal concerning the South China Morning Post article. In that context, the applicant has been denied procedural fairness.

30.     On the question of materiality, it is clear that the Tribunal relied on the impugned South China Morning Post material in concluding that the applicant did not face a real chance of being re-prosecuted in China ([93]-[94]). If the applicant was given an opportunity to rebut the legitimacy of the impugned article, this might have realistically resulted in a different outcome.

31.     For example, if the applicant was able to respond to the South China Morning Post material, this may have led the Tribunal not to give that material any weight (or as much weight against the applicant). Accordingly, the Tribunal would not have had recent evidence to support the apparent finding the Chinese authorities have reduced penalties for the smuggling of weapons into China in recent years ([94]).

(Emphasis in original, footnotes omitted.)

108    When the primary judge dismissed this ground, comprising ground 3 in the judicial review application, his Honour found, without any elucidation, (at J[68]), that the Tribunal was not obliged under s 425, by operation of s 424A(3) of the Act, to put country information (namely the South China Morning Post material) to the appellant. His Honour also found that no procedural unfairness arose.

109    The appellant submits that this reasoning ignores the obligations imposed upon the Tribunal by s 425(1) of the Act.

110    By contrast, the Minister submits that s 425 of the Act does not require the Tribunal to put discrete items of country information to an applicant, nor does it require the Tribunal to put to an applicant the conclusions that it might derive from such information (see SZBEL at [48]) or explain the significance of its questions: see Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 at [87]–[89], applied in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [92].

111    However, the Minister does accept that s 425 will be breached if the Tribunal does not give an applicant any indication of the matters that it considers to be dispositive of the review, in circumstances where those matters are different from those on which the delegate determined the visa application.

112    The Minister referred me to BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76; 261 FCR 515, in which Logan J held (at [82], North and Charlesworth JJ agreeing):

…[T]he Tribunal was not obliged to put “country information”. What it was obliged to do was to afford the appellant a meaningful hearing in which he was apprised by the Tribunal of issues which were not otherwise obvious.

113    Further, the Minister contends that the Tribunal was under no obligation to put to the applicant the nature of any “case” on which the Tribunal proposed to rely on in contradiction to her case: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 at [56]–[57] (per Gummow and Heydon JJ); Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [265]–[266] (per Hayne J).

114    In addition, the Minister submits that independent country information is generally exempt from the Tribunal’s obligations under s 424A of the Act because of the operation of s 424A(3)(a) of the Act. The Minister contends that the present appeal attempts to import the requirements of s 424A(1) into s 425 of the Act, and circumvent the operation of the exclusion contained in s 424A(3)(a): see Applicant A125 at [88]; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [91].

115    Given the above, the Minister submits that there was no breach of s 425 of the Act by the Tribunal failing to put to the appellant any part of the South China Morning Post article, or the conclusions that the Tribunal might have drawn from parts of it.

116    For the reasons which follow, I am of the view that the Tribunal did breach its obligations under s 425 of the Act but the error was not material.

The requirements of Division 4 – Part 7 – Reviewable Decisions: Conduct of Review

117    One of the many stark and unusual features of the Act is this Part. In essence it comprises an exhaustive procedural code as to the requirements of procedural fairness that must be accorded to review applicants during the conducting of reviews under this Division, which has the effect of excluding the common law natural justice hearing rule. In SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99; 177 FCR 555 at [49] and [50], Bennett and Foster JJ accepted the following submission of the Minister which describes a part of its historical evolution and its effect, as follows:

49.     The reasons advanced in support of this submission may be shortly stated as follows:

(a)     Section 422B(1) was introduced into the Act by Act No 60 of 2002. This Act received the Royal Assent on 3 July 2002 and commenced the next day. The Review Application in VEAL 225 CLR 88 was determined by the Tribunal on 14 June 2002 and was thus not subject to s 422B(1). The High Court in VEAL 225 CLR 88 was considering a statutory scheme which did not include s 422B(1) or any provision of like effect;

(b)     Section 422B(1) provides that Div 4 of Pt 7 of the Act:

… is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(c)     The effect of that provision is that Div 4 of Pt 7 provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule (see VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [22]-[31]; and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]-[70]);

(d)     The principles invoked by the High Court in VEAL 225 CLR 88 are part of the common law procedural fairness principles that are encompassed within what is described in s 422B(1) as “the natural justice hearing rule”;

(e)     In the present case the Tribunal’s procedural fairness obligations are limited to putting information that would be the reason or part of the reason for affirming the decision under review (subject to certain exceptions, as to which see s 424A(3)) to the appellant in writing pursuant to s 424A(1), or, orally during the hearing, pursuant to s 424AA, and to affording to the appellant a fair and reasonable opportunity of ascertaining and of responding to those issues which are determinative of his application during the course of the hearing (s 425 of the Act);

(f)     The information and material which was the subject of the references made by the Tribunal in [19], [37] and [79] of its reasons were not the reason nor part of the reason for the Tribunal’s decision to affirm the delegate’s decision to refuse to grant a protection visa to the appellant;

(g)    In addition, and in any event, the information contained in the OSCO reports was general country information and was therefore excepted from the requirements of s 424A(1) by s 424A(3)(a) and similarly excepted from the requirements of s 424AA if that section was engaged in the present case (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572); and

(h)     Accordingly, none of s 424AA, s 424A or s 425 was engaged in the present case and there was no room for any residual operation of the common law natural justice hearing rule.

50.     We think that these submissions are correct and we accept them. The appellant therefore fails in the principal arguments advanced by him to this Court.

118    Section 422B provides:

422B Exhaustive statement of natural justice hearing rule

(1)      This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)      Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)     In applying this Division, the Tribunal must act in a way that is fair and just.

119    Section 423 prescribes the kinds of information the applicant seeking review and the Secretary may provide to the Tribunal for consideration as part of the review. Section 423A concerns how the Tribunal is to deal with new claims or evidence which were not before the primary decision-maker.

120    Relevantly, given its power and effect are the subject of ground 2, section 425 contains the mandatory command that the Tribunal must invite an applicant to appear before the Tribunal, unless the exceptions identified in the section apply. It is extracted as follows:

425 Tribunal must invite applicant to appear

(1)      The 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.

(2)      Subsection (1) does not apply if:

(a)      the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)      the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)      subsection 424C(1) or (2) applies to the applicant.

(3)      If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

121    The Division also, however, contains a number of provisions, again relevant to this appeal, codifying the Tribunal’s procedure concerning providing particulars to the applicant of any “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. The Tribunal has the discretion to seek such particulars at a hearing, arising from the invitation under s 425: s 424AA. However, if this discretion is not exercised, the Tribunal must provide the same in writing and invite a response in accordance with the procedure under s 424A.

122    Sections 424AA and 424A are extracted as follows:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)      If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)      the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)      if the Tribunal does so—the Tribunal must:

(i)      ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)      advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)      if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)      A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A Information and invitation given in writing by Tribunal

(1)      Subject to subsections (2A) and (3), the Tribunal must:

(a)      give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)      ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)      The information and invitation must be given to the applicant:

(a)      except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)      if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)      The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)      This section does not apply to information:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)      that the applicant gave for the purpose of the application for review; or

(ba)      that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)      that is non-disclosable information.

(4)      A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

123    A review of the legislative history of this Part reveals that over time the codification of the Tribunal’s procedures has significantly expanded. A form of the current s 425 predates the current ss 424AA and 424A.

124    The relevant content of Div 4 of the iteration of the Act (as at 29 September 1995), as it existed before the introduction of s 424A, was limited to what the applicant could give to the former Refugee Review Tribunal (s 423), the capacity for the RRT to determine the review “on the papers” if the recommendation on review was most favourable to the applicant (s 424) and where such a review under s 424 was not available, s 425 provided:

425 Where review “on the papers” is not available

(1)    Where section 424 does not apply, the Tribunal:

(a)    must give the applicant an opportunity to appear before it to give evidence; and

(b)    may obtain such other evidence as it considers necessary.

(2)    Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

125    In 1998, substantial amendments were made to the Act including the introduction of s 424A by the Migration Legislation Amendment Act (No. 1) 1998 (Cth).

126    The Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 1) 1998 described the purpose of those amendments, at [116]–[120] in the following way:

Item 3 Sections 424 and 425

116.     This item repeals existing sections 424 and 425 of the Migration Act which provide for the right of a personal appearance by the applicant unless the Tribunal is able to make a decision ‘on the papers’ that is most favourable to the applicant.

117.     It also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the Tribunal is to follow in conducting its review:

•    new section 424 will allow the Tribunal to obtain any information it considers relevant, and, having obtained that information, the Tribunal must have regard to it in making its decision;

•    new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provide respectively that information given by the applicant and non-disclosable information are not included in this section;

•    new sections 424 and 424A also ensure that invitations to an applicant to:

•    provide further information; or

•    comment on information which the MRT considers would be reason for affirming the decision under review;

are sent to the last address for service, or residential address given by the applicant in a way that provides evidence of the date of dispatch. These provisions do not apply to an applicant who is in immigration detention;

•    new subsection 424B(1) enables the Tribunal to specify the way in which additional information is to be given. Additional information may be given in any way appropriate to the circumstances - for example by telephone or by facsimile machine;

•    new subsection 424B(2) provides for additional information or comments on information provided by the Tribunal, otherwise than at interview, to be given within a prescribed period, or if there is no prescribed period, within a reasonable period;

•    new subsection 424B(3) allows the Tribunal to specify, where an interview has been offered, the place of interview and the time of interview;

•    new subsection 424B(4) allows the Tribunal to extend the prescribed period for giving additional information or comment on information for a further prescribed period. The further period will be prescribed by the Regulations;

•    new subsection 424B(5) allows the Tribunal to extend the period for a response at interview to some other time within the prescribed period or to a time within a further prescribed period. The further prescribed period will be prescribed by the Regulations:

•    in this section “interview” does not mean appearance before the Tribunal. At interview the applicant may be invited to give additional information or comment on information provided by the Tribunal. The applicant does not have the right to give evidence and present arguments relating to issues arising in relation to the decision under review at an interview conducted pursuant to section 424; and

•    new section 424C provides that where a person fails to provide additional information under section 424 or an applicant fails to provide comment on information under section 424A, the Tribunal may make a decision without taking any further action. The purpose of the new section is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information or comment within the prescribed period.

118.    New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies. When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal.

119.     Subsection 425(2) applies when:

•    the Tribunal can decide the review in the applicant's favour on the basis of the material before it; or

•    the applicant consents to the review proceeding without an appearance; or

•    the applicant fails to respond, within the prescribed period or a reasonable period, to an invitation to provide information or comments to the Tribunal.

120.     At an appearance the applicant would be entitled to give evidence and present arguments relating to the issues arising in relation to the decision under review.

127    Further amendments were made to this Division in the Act in 2001 (Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth)) but the amendments do not have any significance to this appeal until the amendments made in 2007 by the introduction of the Migration Amendment (Review Provisions) Act 2007 (Cth) and the introduction of s 424AA. The Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 described the purpose of and interplay between the amendment (the new s 424AA) and ss 424A and 425 in the following way:

Item 18 After section 424

47.     Currently, section 424A provides that the Refugee Review Tribunal (“the RRT”) must give applicants for review particulars of any information that the RRT considers would be the reason, or a part of the reason, for affirming the decision under review. This must be done either by a prescribed method for an applicant in detention or by one of the methods specified in section 379A. As a consequence of the High Court decision in SAAP, section 424A requires that the RRT must always provide the particulars of the information and the invitation to comment to the applicant in writing even if the information has already been covered at hearing.

48.     New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT’s existing obligation under section 424A, in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA, it is not required to give the particulars under section 424A.

49.     Where a review applicant is appearing before the RRT pursuant to an invitation issued under section 425, new paragraph 424AA(a) provides the RRT with a discretion to give to the review applicant orally, clear particulars of the information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review.

50.     Section 425 provides that, unless the RRT considers that it will find in the applicant’s favour or the applicant consents to not appear before the RRT, the RRT must invite the applicant to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 429A provides that the RRT may allow the applicant to appear or to give oral evidence before it by telephone, closed-circuit television or any other means of communication. The RRT is required to appoint an interpreter if the applicant is not sufficiently proficient in English.

51.     New paragraph 424AA(b) provides that if the RRT exercises its discretion to orally provide clear particulars of the information that it considers would be the reason, or part of the reason, for affirming the decision under review, then the RRT is obliged to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision. The RRT is also obliged to orally invite the applicant to comment on or respond to the information and to advise the applicant that he or she may seek additional time to comment or respond. If the applicant seeks additional time to comment or respond, the RRT must adjourn the review, if it considers that the applicant reasonably needs additional time to comment or respond.

52.     In inviting the applicant to comment on or respond to information while the applicant is appearing before it, the RRT must clearly set out what the information is and why it is relevant. The applicant can seek clarification and make additional comments. It will enable the RRT to give clear particulars of information orally at a hearing without also being required, as is presently the case, to give the same particulars in writing to the applicant after the hearing. The amendment will facilitate the more efficient conduct of reviews by improving their quality, timeliness and will reduce the cost of reviews.

The amendments will also ensure that applicants are not taken by surprise and are given time, if necessary, to provide their comments or response.

128    For the reasons which follow, it is my view that the interplay between the Tribunal’s obligations under s 425 and any limitation of its obligations under s 424A is not as stark as either party has submitted to me. The Tribunal’s obligation under s 425 may include alerting an applicant to an issue arising from country information and the operation of s 424A(3)(a) does not reduce the breadth of the obligation. As to whether, by reason of country information, an issue, dispositive in the case, arises which was not before the delegate requires careful attention to be given to the delegate’s reasons, an applicant’s application for review (including his or her submissions and evidence), what transpired at hearing before the Tribunal and the Tribunal’s reasons. I concur, albeit obiter, with the reasoning of Bromwich J in BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at [54]–[58].

129    As described by the High Court in SZBEL at [33], the Act “defines the nature of the opportunity to be heard” that is to be given to an applicant for review, as being invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (emphasis in original). The High Court described those “issues” in the following way:

34.     Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35.     The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

(Emphasis in original.)

130    As to whether a particular of information about which the Tribunal considers “would be the reason, or a part of the reason, for affirming the decision that is under review”, required to be provided to an applicant under s 424A, could constitute an “issue” about which the Tribunal has obligations under s 425, this is a question that requires consideration in the particular case. There is an obvious overlap between the two. I note from the legislative history, as described above, that s 425 predates ss 424A and 424AA. There has been no subsequent amendment of s 425 to narrow the scope of the obligation nor is there anything in the extrinsic material to suggest that it should be so read down.

131    As a consequence of the reasoning in SZBEL, in order to assess whether the Tribunal has undertaken its statutory task in the manner required of it under s 425, attention must be given to what the relevant issue about which the South China Morning Post material relates and whether that issue is new or formed part of what the delegate had considered dispositive to its reasons. If it is new, the Tribunal had an obligation to “tell the applicant what that other issue is”. Otherwise the appellant “would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”: SZBEL at [36].

132    Whilst the delegate’s reasons reveal that the issue of the likelihood of re-prosecution in China was a “live issue”, the issue of the potential insufficiency of foreign penalty was not an “issue” before the delegate. In Part 6 of the delegate’s decision, when addressing the refugee criterion under s 36(2)(a) of the Act, and whether the fear of persecution was well-founded, the delegate noted the following:

I will consider whether relevant country information demonstrates that there is a real chance that the applicant will be re-arrested and re-prosecuted in China for the same offences [sic]

Double Jeopardy/re-prosecution

The concept of double jeopardy generally refers to re-prosecution for the same crime in the same jurisdiction. In this case, the applicant fears being re-prosecuted for the same crimes but in a different jurisdiction (China) to the jurisdiction in which she was originally prosecuted (Australia). However, I note that the sources cited in this decision use the terms ‘double jeopardy’ and ‘reprosecution’ interchangeably.

Re-prosecution of a crime that was tried in another country is allowed under China’s Criminal Law. Re-prosecution is less common for offences that attract a lower sentence (less than three years imprisonment under Chinese law), however the length of sentence and punishment received overseas may factor into decisions about re-trial or the punishment given. Overseas acquittals may be retried in Chinese courts. The law is not prescriptive, it provides that trial and punishment ‘may; [sic] be applied, and discretion is understood to be used, particularly in politically sensitive cases. As is common with China’s laws, the use of discretionary words (such as “may” or “may not”) lends a degree of uncertainty, and flexibility, to the application of China’s Criminal Law, particularly in politically sensitive cases.

The United Kingdom Foreign and Commonwealth Office’s 2015 ‘Country Information and Guidance’ report on double jeopardy provides the following about Articles 7 and 10 of the Chinese Criminal Law:

‘Article 7

‘This law is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three-year fixed-term imprisonment for such crimes, may not be dealt with.

‘This law is applicable to PRC state personnel and military personnel who commit the crimes specified in this law outside PRC territory.

…

‘Article 10

‘Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment

…

According to a 2005 FCO letter, the circumstances under which an individual would be punished in China for a crime committed in a foreign country, for which he had already been punished in that country, are not stipulated. The Chinese authorities are most likely to take this action if the crime had received a lot of publicity in China, if the victims were well-connected in China, if there were a political angle to the original crime or if the crimes were of a particular type that the authorities wanted to make an example of. As of July 2005 the British Embassy in Beijing is unaware of any such instances. The specific inclusion in the Criminal Law of ‘exemptions’ from second punishment in China for crimes committed abroad suggests that the authorities would not take further action against those convicted abroad for ordinary criminal offences.

However, significantly, the United Kingdom Foreign and Commonwealth Office’s report states that “whilst there is a risk of prosecution or re-prosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China, use of the legal provisions is discretionary and extremely rare. Without particular aggravating factors, the risk falls well below the level required to engage international protection”. The Report goes on to state that

… the risk of prosecution or re-prosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious. Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment;(d) political factors may increase the likelihood of prosecution or re-prosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.

(Emphasis in original, footnotes omitted.)

133    Accordingly, the delegate’s focus was on the likelihood of re-prosecution per se without consideration of how a smuggling offence is dealt with under Chinese criminal law and whether by comparison, the sanction received in Australia was insufficient.

134    To the extent that the delegate gave any consideration at all to Chinese cases, it was by identifying the types of crimes committed outside of China that were of interest to Chinese authorities, which did not including smuggling cases, but rather murder, corruption, embezzlement and where a person was an international fugitive. The relevant portion of the reasoning is extracted as follows:

Crimes of interest to the Chinese authorities

The sources cited in this decision demonstrate that China’s interest in the return of its citizens implicated in criminal activities is focused on those suspected of involvement in very specific crimes. For instance, China has increasingly sought the co-operation of foreign governments to have individuals who it alleges have committed politically sensitive or embarrassing offences returned to China for investigation. Additionally, after taking office in 2013, President Xi launched an anticorruption campaign, which includes Operation Fox Hunt, China’s global anti-corruption operation to [sic] “to locate and repatriate ‘economic fugitives’ and their overseas assets”, which was extended in 2015 to include Operation Skynet.

The Australian Strategic Policy Institute states that “economic crimes are likely to be the Chinese Government’s primary interest driver for enforcement cooperation with Australia, with a predominant focus on fraud and corruption … China’s most prominent economic fugitives are corruption suspects, due to the Chinese Government’s high-profile anticorruption crackdown … [and] [a]nticorruption is one of the Chinese Government’s most important domestic and foreign policy issues.

Anti-narcotics operations are also of interest of interest [sic] to the Chinese authorities as it, like Australia, suffers from a domestic illicit drug problem.

Based on the sources cited in this decision, there is no information to suggest that a Chinese citizen who has been appropriately prosecuted and penalised in Australia for the types of offences committed by the applicant has been re-prosecuted for the same offences in China. However, I am mindful that China controls information it releases for public scrutiny and that access to objective information about its state-controlled systems, including the legal and criminal justice systems, can be limited or unavailable. In these circumstances, an absence of information should not automatically lead to a conclusion that there is no real chance that the applicant will be re-prosecuted in China.

However, consideration of the following examples of Chinese citizens whose criminal involvement did attract adverse interest from the Chinese authorities, who returned to answer criminal changes in China, provides context to the applicant’s situation and allows for comparisons to be made.

DFAT referred to a case example where a Chinese citizen was re-prosecuted in China for the same crime for which he had been tried and sentenced in Japan. However, in that case, not only was the charge of murder arguably considerably more serious than the applicant’s offences but there were additional factors which are likely to have influenced the decision to re-prosecute. For example, the case was initiated in China after the victim’s parents filed a civil lawsuit to obtain compensation from the appellant. Additionally, the punishment received overseas was not equivalent to that imposed in China.

A 2016 Sydney Morning Herald article reported on a Chinese citizen in Australia who was wanted by Beijing on charges of corruption. She was the subject of an Interpol red notice and on a list of the Communist Party’s top 100 wanted criminals. She returned to China to cooperate with police after succumbing to “pervasive pressure tactics employed by Chinese authorities”. This example indicates that the Chinese authorities are willing [sic] overstep the “bounds of bilateral law enforcement cooperation in its zealous pursuit” of its nationals in Australia who it wants to return to face criminal charges. Conversely, there is no indication in the applicant’s case that the Chinese authorities have asked the applicant to return to China to face charges, nor is there evidence of [sic] that the Chinese authorities have asked the Australian government to facilitate the applicant’s return.

The Sydney Morning Herald article also raises the case of a Heilongjiang man who agreed to return to China to face embezzlement charges. Country information about criminal procedure in China indicates that Chinese courts are under pressure to secure convictions and that conviction is almost guaranteed in criminal trials. According to media and human rights advocates’ reports, police rely heavily on confessions, including forced confessions, being obtained rather than collecting evidence. Various media reports put the conviction rate in China at over 99 per cent of defendants in 2016 to 2018 although there are no recent reliable statistics.

The Heilongjiang man was subject to publicity in China on state media websites and local newspapers, he was met by police at the airport and “local authorities basked in the credit for successfully tracking down an international ‘fugitive’”. In light of the nature of the criminal justice system in China, this level of official interest would suggest an inevitable conviction. However, the Heilongjiang man reported that he was promised a fair investigation and even though his case was delayed for over a year and he was eventually found guilty, no custodial sentence was imposed. He was also allowed to move freely around China while his case was being heard.

When compared to the above cases, the absence of any credible, active attention on the applicant from the Chinese authorities is reasonable evidence that she is not of adverse interest to them. Chinese government pressure is reportedly the most common method it uses to compel its citizens to return to China who are wanted in relation to criminal matters. The Australian Strategic Policy Institute states that “this is done by Chinese investigators either pressuring a fugitive’s family in China, or Chinese police travelling to another country to pressure the suspect to return. There are even cases of kidnapping and forced repatriation, including allegations that this has happened in Australia”. The applicant did not make claims that she has been contacted by the Chinese authorities, let alone that she or her family have been subjected to pressure or threats. Although, as I stated above, I do not accept that the police visited the applicant’s brother in China, it is worth noting that even if I am wrong, the applicant claimed that the police reportedly visited only once and merely asked about the applicant’s whereabouts.

135    Ultimately, to the extent that any consideration was given to the likely penalty for like offences in China, it was that this type of offence “no longer attract[s] the death penalty”, as the delegate found:

The criminal offences to which the applicant pleaded guilty in Australia are not of the profile or level of seriousness that the Chinese authorities are known to pursue and punish, or re-prosecute. In that light, it is difficult to envisage the Chinese authorities expending resources to pursue and re-try someone who would be perceived to be a one-time, relatively low level, non-violent offender.

Although I have found that the applicant’s claim that she will face re-prosecution in China is not well-founded, I note that the types of offences for which that the applicant was prosecuted in Australia, no longer attract the death penalty in China. In November 2015, China amended its Criminal Law and re-moved [sic] nine crimes punishable by death, which included smuggling weapons and ammunition. Further, no information was found, in the sources cited in this decision, of persons encountering societal harm on return for offences committed overseas.

(Bold added.)

136    In conclusion, the delegate found that, based on the sources cited in her decision, there was no information to indicate that Chinese citizens who had been convicted and sentenced for the same offences as the appellant faced a real risk of being re-prosecuted in China for those offences.

137    The delegate noted that unlike cases involving allegations of corruption there was no evidence that China had sought Australia’s assistance to return the appellant to China. Further, based on country information, the delegate found that the risk of re-prosecution in China depends on aspects of a particular case, including its seriousness and the level of embarrassment to the Chinese government, for which there was no information before her which suggested the appellant’s crimes had received publicity in China, had a political angle or affected “well-connected” victims in China, or involved corruption or economic fraud relating to the Chinese government or Chinese citizens. Accordingly, the delegate found there were no aggravating factors that would increase the appellant’s chance of re-prosecution in China.

138    Notably, the delegate acknowledged that the length of the sentence imposed and punishment received overseas may factor into China’s decisions about re-trial and any punishment given and that because the appellant’s sentence served was less than three years imprisonment, she would be less likely to be of adverse interest to the authorities in China. However, no comparative analysis was done of how China, under its own law, considered and punished like smuggling offences.

139    Ultimately, the delegate found that re-prosecution in China is “extremely rare”, and was satisfied that the Chinese authorities would not make a particular example of the appellant by re-prosecuting her.

140    The issue of the potential for the Chinese government to consider the smuggling offence as “serious’ by reference to Chinese law and likely penalties was raised by the appellant in her application for review to the Tribunal, which included as one of its particulars:

(a)    The delegate made no assessment of the ample evidence to indicate that illegal Guns trafficking offences are viewed seriously in China, and that this has acquired an added political dimension…

141    For the first time, the appellant’s detailed submissions before the Tribunal refer to specific articles from the Criminal Law of China concerning smuggling offences (arts 125 and 128) and the penalties they attract. Relevantly, the appellant submitted at [12]–[27] (paragraphs [19]–[21] which are extracted above at [72], as contained in the Tribunal’s reasons at T[39]) why, given the penalties available under Chinese law, the fact that she had “only actually served 12 months imprisonment is likely to be perceived by the Chinese authorities as largely insufficient comparable to [her] criminality”. This was a new dimension to the appellant’s case regarding the likelihood of re-prosecution not considered by the delegate.

142    Accordingly, contrary to the Minister’s submission, the “issue” was not a “live” one before the delegate. To the extent that the Minister relied on that portion of the delegate’s reasons which set out several examples of Chinese citizens whose cases attracted adverse attention, with the last of these examples being one in which no custodial sentence was imposed, those cases go to a different “issue” — namely, what kinds of criminal activity outside China are likely to attract the adverse interest of the Chinese authorities such that re-prosecution is likely, rather than how China viewed “smuggling” offences and the inadequacy of overseas sanctions for such offences such that the appellant’s re-prosecution was likely.

143    The Tribunal’s obligation pursuant to s 425 of the Act is to invite an applicant to give evidence and present arguments on the issues arising on review before the Tribunal. The Tribunal will generally infringe s 425 if it does not give an applicant an indication of the matters that it considers dispositive to the review, in circumstances where those matters are different to those on which the delegate determined the visa application: SZBEL at [33]–[35]. Here, those matters were different.

144    Here, the appellant raised in her submissions before the Tribunal what the likely penalties in China for smuggling offences may be by reference to arts 125 and 128 but not with reference to specific cases. She maintained before the Tribunal that she would likely receive the death penalty. No issue is taken by the appellant, alleging any breach of s 425, with respect to the Tribunal’s findings that the offence would not attract the death penalty in China.

145    The crucial aspect of the Tribunal’s reasoning, about which the alleged breach of s 425 is engaged, relates to its observations of the evidence, at T[52] and T[53], and its findings at T[94] (extracted at [103] and [68] above respectively). Part of the purpose of s 425 is to raise issues which are not favourable to the appellant, which were not before the delegate and about which the appellant is not on notice. When one reads the Tribunal’s description of the evidence it obtained from “independent” research, at T[52] and T[53], on one view it appears favourable to the appellant. The Tribunal accepts that the Chinese authorities have “recently engag[ed] in a significantly heightened campaign against gun smuggling and possession”. Further, it appears to recognise that the example of a “reduced” sentence “to seven years in jail” may not be the low point of any potential comparative Chinese penalty applicable to the appellant’s circumstances given the appellant’s crime involved over five times the number of smuggled items.

146    However, ultimately, the level of significance this issue has upon the Tribunal’s findings, as opposed to the consideration of the evidence is what is critical. In particular, at T[94], that “penalties have dropped in recent years, with the dropping of the death penalty and, as seen in a specific case of the smuggling [sic] dozens of replica firearms into China, with the reduction of an originally-imposed life sentence to imprisonment of only seven and a half years…”. The counter-proposition of penalties having “dropped in recent years” was of some significance in considering the appellant’s claim that China’s perceived insufficiency of the appellant’s foreign sanction would lead to re-prosecution. This issue was not raised with the appellant. It should have been. This constitutes a breach of the Tribunal’s obligation under s 425.

147    I accept the Minister’s contention that s 425 of the Act may not require the Tribunal to put discrete items of country information to an applicant. However, I do not consider the Minister to be correct, for the reasons stated above, in saying an obligation does not arise under s 425 in this case. The Minister is not able to rely on the reasoning in Applicant A125 at [87]–[89], applied in CQG15 at [92]. Both cases concerned the scope of the Tribunal’s obligation under s 425 when dealing with inconsistencies in the answers to questions given by an applicant, which is a different context to the present and is distinguishable.

148    The Minister may not also call to its aid S154 or Muin in order to read down the Tribunal’s obligation under s 425: Contrary to the Minister’s submission, those cases do not stand for the proposition that the Tribunal has no obligation to put to the applicant the “nature of any ‘case’ on which the Tribunal proposed to rely in contradiction to her case”. S154 concerned the lack of acceptance of an allegation (whether the visa applicant had been sexually assaulted by police officers in her country of origin) and the relevant portion of the decision upon which the Minister purportedly relied, related to the applicability of the rule in Browne v Dunne (1893) 6 R 67 (HL). The extract relied upon by the Minister from a portion of Heydon J’s reasoning in Muin is general in nature and does not deal specifically with the nature of the obligation under s 425. In any event, it is not inconsistent with the view I have formed about the operation of s 425.

149    I accept that in BXK15 the Full Court found that there was no breach of any obligation under s 425: at [78]. However, I do not understand the effect of the Full Court’s reasoning to go beyond a determination of the extent of its obligation in that case regarding “country information” and where the Court acknowledged, in the second sentence extracted above, the need for a “meaningful hearing” where the appellant was “apprised” by the Tribunal of the issues which were not otherwise obvious. This reasoning is not inconsistent with the position I have taken.

150    I accept the Minister’s submission that independent country information is “generally” exempt from the Tribunal’s obligations under s 424A of the Act because of the operation of s 424A(3)(a) of the Act. However, I do not accept the Minister’s contention that the present appeal attempts to import the requirements of s 424A(1) into s 425 of the Act, and circumvent the operation of the exclusion contained in s 424A(3)(a). I do not see the “exclusion” contained in s 424A(3)(a) having such a stark effect on the obligations that arise under s 425. I am of the view that the authorities the Minister relies on (Applicant A125 at [88] and M61/2010E at [91]) are distinguishable from this case: Applicant A125 concerned the purported failure by the Tribunal to identify the significance of the questions being put to the appellant. M61/2010E did not involve any consideration of the bounds of s 425 and its interaction with obligations under s 424A.

151    Having found error, for it to be jurisdictional it must be material, meaning that the Tribunal’s failure to raise this issue and give the appellant an opportunity to be heard could have realistically resulted in the Tribunal making a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2]–[4]. I accept, as the plurality of the High Court opined in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, at [33], there will “generally” be a realistic possibility that the process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. However, each case must be assessed independently.

152    Here, I note the Tribunal’s bases for not accepting that the appellant would be re-prosecuted in China were multifaceted. They included the fact that the Tribunal did not accept that the Chinese authorities had shown any interest in the appellant by contacting her family in China, that she was considered to have a “political profile” by reason of her being a person that the Australian government wished to deport such that she would be considered a “more serious” offender and that more consideration would be given to “re-prosecuting her after she returns to China”: at T[92].

153    The Tribunal then determined that there was no “real chance of [the appellant] being re-prosecuted in China” because it was not satisfied that the Chinese authorities had any evidence, or had shown any concern, to the effect that the smuggling offences had occurred in China: at T[93]. There is no challenge to this finding on appeal. It is only with respect to the Tribunal’s alternative finding, if the Chinese authorities believed that the appellant’s smuggling offending originated in China, about which there are at least seven bases relied upon, at T[94], that the issue of likely penalty in China arises.

154    For these reasons, I am not persuaded that the error was material.

Conclusion

155    For these reasons, I dismiss the appeal with costs. Orders will be made accordingly.

156    Finally, the Court expresses its gratitude to Ms Yu, of counsel, who appeared pro bono for the appellant in this matter. The Court is assisted greatly by the preparedness on the part of the solicitors and barristers who are willing to appear for people who would otherwise not be in a position to be represented.

Associate:

Dated:    16 May 2023