Federal Court of Australia

AGD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the additional grounds of appeal is refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    The appellant is a Chinese citizen who came to Australia in 2012 on a student visa, applied for a subsequent visa which was refused, was granted several bridging visas and then, in 2015, applied for a protection visa. The Minister’s delegate’s refusal of that application was affirmed by the Administrative Appeals Tribunal but then quashed upon judicial review. In 2018, for a second time, the Tribunal affirmed the decision of the delegate (AAT). The appellant sought review of the Tribunal’s second decision before the Federal Circuit and Family Court of Australia (Division 2). In May 2024, the primary judge dismissed the appellant’s application reviewing that second Tribunal decision affirming the delegate’s decision to refuse to grant him a protection visa: AGD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 422 (PJ).

2    The appellant has come to this Court, purportedly appealing the FCFCOA decision. By the appellant’s handwritten grounds of appeal, the issue identified as being required to be determined on appeal, was whether there were unparticularised “logical errors in the findings of facts” such that, the primary judge made the wrong decision, which “violated the law” such that the decision was “unfair and [un]just”.

3    However, as best as the Court could discern, at hearing, the appellant identified four alleged errors which were largely directed to the Tribunal’s second decision (rather than the reasoning of the primary judge): Firstly, that the Tribunal failed to consider the basis for the appellant not having participated in political activity when he was in China (namely, that he feared he would suffer harm, including being monitored, being the subject of criticism and being unable to leave the country); Secondly, that the Tribunal failed to take into account why the appellant was not politically active in Australia, which included that he did not need to be politically active in Australia because he is living here far away from the Government of China and because his protection application had not yet been approved, such that, he was concerned to protect himself and his family; Thirdly, that the Tribunal erred by taking into account the absence of the appellant’s engagement in any political conduct in Australia and where the Tribunal could not consider any such conduct (if it had occurred) anyway, by operation of s 5J(6) of the Migration Act 1958 (Cth); and, Fourthly, that the appellant would suffer mental harm if returned to China, because he would be required to suppress his political beliefs and would suffer “suppression and penalty”; therefore, the Tribunal, and, in turn, the primary judge, erred by failing to recognise that the appellant’s circumstances fall within those requiring protection under s 36(2A)(d) (being the subject of cruel and inhumane treatment or punishment) and (e) (being the subject of degrading treatment or punishment).

4    As will be apparent from the below, the first three alleged errors now raised, were not grounds that were ventilated before the primary judge. As a consequence, the appellant must be granted leave to pursue the new grounds on appeal and to establish that the “interests of justice” demand it: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 per Mason J; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]–[94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. Leave is required because it is fundamental to the administration of justice that the substantial issues between the parties are dealt with at trial and those proceedings are not reduced to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. For the reasons which follow, to the extent that leave was sought, leave is refused to rely on the new grounds raised.

5    As to the fourth alleged error, the appellant is reventilating the same ground as was raised before, and dismissed, by the primary judge. In an appeal of this nature, this Court must determine whether the FCFCOA was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [117] per Nettle and Gordon JJ. This Court has no power to grant a visa, nor to disagree with the merits of the decision of the Tribunal. This Court may only correct error. For the reasons which follow, no jurisdictional error has been established and the appeal must fail.

Why the appellant is not granted leave to rely on the new grounds

6    In this case, the Tribunal’s reasons reveal that it first considered the statutory framework within which it was to undertake its assessment by reference to the statutory criteria under s 36(2) of the Migration Act. As a consequence, the Tribunal identified that the issue to be determined was whether there was real chance that the appellant (then the applicant) would suffer serious harm on return to China by reason of, amongst other things, his political opinion, or alternatively, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China, there was a real risk he would suffer significant harm: AAT[14]. No issue was taken with the Tribunal’s distillation of the issue, but rather with its resolution of the issue, which was said by the appellant to err in being based on “subjective opinion” rather than objectively following the law.

7    The Tribunal observed that, since arriving in Australia, the appellant had not engaged in any political or anti-government activity: AAT[37]. It found that, although the appellant had made online posts, he was not a recognised blogger or commentator, and there was no evidence that his online activity would attract the attention of the Chinese government: AAT[41]. The Tribunal did not consider that the appellant would be required to modify his behaviour so as to avoid a real chance of serious harm arising from his political opinions: AAT[42]. Accordingly, the Tribunal was not satisfied that there was a real chance the appellant would suffer serious harm on return to China for reason of his political opinions, or for any other reason, and found that the appellant did not have a well-founded fear of persecution in China: AAT[44].

8    For the same reasons, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there was a real risk he would suffer significant harm: AAT[46].

9    Relevant to the question of whether to grant leave, the appellant’s application for review before the primary judge was as follows:

1.    In the ruling, from the contents of statement of decision and reasons articles 40 and 42 can seen that. I am a person who has political dissent for a long time with the CCP.

2.    It is clearly stated in the ATTACHMENT – Extract from Migration Act 1958 5(1) that cruel or inhuman treatment or punishment is not only physical but also spiritual.

3.    I am a political dissident with the Chinese Communist Party. Living in a social environment like China without freedom of speech, one-party dictatorship, and strict supervision of people’s ideas and minds, in order to protect themselves, we must suppress ourselves mentally and psychologically for a long time. I dare to express my own political opinions and opinions. I cannot pursue my own ideals of democracy and the rule of law, and I cannot live myself. This is the fact that I suffer cruel and inhuman harm in spirit and psychology.

4.    The reason why I have not been seriously hurt by people is because I have self-protecting all the time. This does not mean that I am not likely to suffer personal injury when I return to China. On the contrary, the life experience in the democratic and legal society is even stronger, so if I return to China, I may not be able to suppress myself as I used to, and I am likely to suffer severe personal injury while being subjected to cruel and [illegible].

10    As a consequence, it is apparent that the fourth alleged error before this Court was the only issue upon which, at a stretch, it could be argued formed part of the argument before the primary judge (but where it is not now articulated how the primary judge erred in not accepting the appellant’s argument).

11    The primary judge considered that grounds one to four of the appellant’s application were, in substance, submissions on the merits of the appellant’s protection claim and found that the appellant’s grounds did not identify any jurisdictional error in the decision and simply amounted to impermissible merits review: PJ[39]–[41].

12    The primary judge also considered an additional ground of review, as articulated in the appellant’s 18 January 2019 affidavit and considered it to be a proper allegation of error: The appellant claimed that the Tribunal had failed to consider whether he would be persecuted in China, claiming that the Tribunal’s decision that he would not be persecuted, was illogical given what he had done in Australia; namely, his compliance with Australian law, his presentation of himself to the Department knowing he would be detained and that he had lived in Australia since 2015, without full freedom in Australia, proved his “pursuit of freedom and democracy”: PJ[43]–[44]. The primary judge found that “on the face of the Tribunal’s decision” there was nothing to obviously give rise to an allegation that the Tribunal failed to take a relevant consideration into account: PJ[51].

13    I will now deal with each of the alleged errors now claimed by the appellant, and why I am not satisfied that leave to extend time and to rely on the additional grounds should be granted.

The Tribunal did not fail to consider why the appellant had not participated in political activities when he was in China

14    The appellant contended that the Tribunal had failed to consider the basis for why he had not participated in political activity when he had lived in China before coming to Australia. The reasons he gave in his oral submissions on appeal were that he had feared he would suffer harm, including being monitored, being the subject of criticism and being unable to leave the country. This ground is directed to a purported failure in the Tribunal’s reasoning which was not made to the primary judge. There was no evidence before me that a claim of this kind was made to the Tribunal and accordingly, I am not satisfied that the Tribunal failed to consider the claim.

15    It is evident from the Tribunal’s reasons that the Tribunal had asked the appellant whether he had engaged in any anti-government activity in China, to which the appellant said that he refrained from any public expression of his opinions, although he did voice his views privately to friends: AAT[26]. The Tribunal also recorded in its reasons that the appellant’s oral evidence was he never publicly expressed his personal and political opinions in China. Further, the Tribunal found that the appellant had confirmed his views did not bring him to the attention of the authorities prior to his departure from China: AAT[36]. There is nothing, however, before me to suggest that the appellant had put before the Tribunal his motivations for not participating in political activity.

16    At hearing in this Court, the appellant tendered what appeared to be Wikipedia or like summaries of political activists in China, their crimes and sentences, as well as summaries of various articles of the Criminal Law of the People’s Republic of China. The appellant referred to these cases “to prove” he understood the consequences for him had he engaged in political activity in China would be severe. The respondent objected to the admission of the material on the basis that it could not be relevant to whether the primary judge made a jurisdictional error. I allowed those documents into evidence subject to relevance. The documents comprise what appear to be online translations of unauthoritative summaries. Setting aside these issues, it is also unclear how these documents may be of assistance to the appellant. They go to no more than a speculative exercise into the appellant’s potential state of mind as to his knowledge of the existence of certain crimes and political activists. They say nothing, of itself, as to what the appellant would otherwise have done.

The Tribunal did not fail to take in account the reasons for the appellant’s absence of political activity in Australia

17    By this new ground, the appellant contended that the Tribunal had failed to take into account why he was not politically active in Australia; namely, that he did not need to be politically active here, because he was living far away from the Government of China and because his protection application had not yet been approved, such that, he was concerned to protect himself and his family. Again, this proposed ground is directed to a purported failure in the Tribunal’s reasoning which was not made to the primary judge. In any event, I do not consider that the Tribunal had failed to consider this. It is clear that the Tribunal had regard to the appellant’s reasons for why he had not engaged in political activities, and specifically referred to his concerns for his family in China and the fact of geographical distance: AAT[29] and [30].

The Tribunal was not precluded, by operation of s 5J(6), from considering the appellant’s political (or absence of) activity in Australia

18    By this new ground, the appellant submitted that the Tribunal had erred by taking into account the fact of, or absence of, political activity by the appellant in Australia, because the Tribunal could not consider any such conduct by operation of s 5J(6) of the Migration Act.

19    Section 5J(6) provides:

In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

20    Accordingly, contrary to the premise underpinning the appellant’s new argument, the Tribunal is not precluded from considering conduct engaged in by a person in Australia (or the absence of it), but rather the Minister (or the Tribunal) must be satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening his or her claim of being a refugee (and therefore be entitled to protection). Further, it is apparent that the Tribunal did consider the extent of the appellant’s political activity in Australia, as proffered by the appellant, to be online activity in 2015. This was activity was undertaken three years before the Tribunal hearing. The Tribunal gave consideration to the evidence of online activity: AAT[39]–[41]. It does not appear that it found that such activity was undertaken for the purpose of strengthening his claim for protection. However, it was found, that that past activity, together with what the Tribunal found about it not being likely that the appellant would engage in future political activity (if returned to China), meant that it was unlikely that the appellant would be required (by belief) to modify his behaviour so as to avoid a real chance of serious harm to him by reason of his personal or political opinions.

No error is established in the determination of the absence of harm if the appellant were returned to China

21    The appellant submitted, on appeal, as he had before the primary judge and the Tribunal, that he would suffer mental harm if returned because he would be required to suppress his political beliefs. This, rather than, identifying any jurisdictional error, repeats a claim made by the Tribunal that was rejected by the Tribunal (and about which no jurisdictional error was found by the primary judge). I can discern no error in the primary judge’s reasons in this regard.

22    It is clear from the Tribunal’s reasons that it considered the likely harm the appellant claimed he would suffer, namely, that he would be required to “hide his true feelings” upon return, which would cause him mental harm: AAT[32]. The Tribunal accepted that the appellant is “discontent with the socio-political situation in China and would prefer to live in a more open and democratic society” and went on to make the following findings (AAT[42]):

… While during the hearing the applicant went to lengths to point out that the only way he will avoid persecution in China is to hide or compromise his true political views the Tribunal does not accept this. As noted, the applicant last engaged in any online commentary in 2015 and the Tribunal found his comments as to any likely intended future actions to be somewhat speculative. Based on the level of his past and present behaviour the Tribunal is not persuaded that he is sufficiently motivated to engage in a level of political discourse or activity which will likely attract adverse attention form the authorities. While the Tribunal accepts the applicant holds personal views which may be at odds with the prevailing social and political opinions of the Chinese government he has not demonstrated a high motivation or willingness to publicly act on them. Based on his behaviour to date, the Tribunal is not satisfied that the applicant will be required to modify his behaviour so as to avoid a real chance of serious harm to him [by] reason of his personal or political opinions.

23    Accordingly, ultimately the Tribunal rejected the appellant’s claim that he will be required to modify his behaviour. In effect, the Tribunal was not persuaded that his level of personal conviction to engage in political discourse that would attract the adverse attention of authorities was such that he would suffer the harm he said he would suffer. This is evident from the next paragraph of the Tribunal’s reasons (AAT[43]):

For completeness the Tribunal acknowledges the applicant’s wide-ranging claims of dissatisfaction with Chinese society in general including the claimed lack of love, happiness and inclusiveness; the lack of respect for individuality and nature and the prevalence of societal judgment. Further, the Tribunal notes the applicant’s concern that he won’t be able to fulfill his career aspirations to be a lawyer if he does not join the Communist Party. However, the Tribunal is not satisfied that any impact the applicant might suffer from these circumstances will amount to serious harm as explained at s.5J(5) of the Act or to significant harm as defined in s.36(2A) and 5(1) of the Act.

24    The primary judge noted that the appellant raised arguments at the hearing that were not contained in his written submissions, specifically suggesting that the Tribunal failed to consider whether the appellant would have to modify his behaviour upon returning to China. The primary judge found that the second Tribunal decision did consider this point and found that the appellant would not be required to modify his behaviour to avoid a real chance of harm: PJ[53]–[54].

25    To the extent that it was submitted that the alleged error constituted legal unreasonableness, a review of an administrative decision to determine whether it is legally unreasonable is concerned with the enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J. As has been observed previously, there are two analytical approaches which may be deployed to ascertain unreasonableness—unreasonableness as to the outcome of the exercise of power, or the reasoning that led to that outcome: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [81] per Mortimer CJ. Where reasons are given for the exercise/non-exercise of a power, it is against those reasons that the Court conducts its review as to reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47]. Further, to the extent that it was meant to be submitted that the decision was illogical, to be illogical it must be something more than emphatic disagreement and it must mean that the decision the Tribunal came to was one to which no rational or logical decision-maker could arrive at on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] per Crennan and Bell JJ.

26    I can find no error. As the primary judge was correct in finding, on the face of its decision, the Tribunal considered the appellant’s claims, the relevant issues and questions under s 36 of the Migration Act.

Conclusion

27    For these reasons the appeal must be dismissed with costs.

Associate:

Dated:    12 November 2024