ADJ16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 This is an appeal from the Federal Circuit Court ("the FCC"): see ADJ16 v Minister for Immigration and Border Protection [2016] FCCA 3326. The FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal") in which it had affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa. 2 The appellant, who is a Chinese citizen, entered Australia on 9 April 1997. Shortly afterwards he applied for a protection visa. He did so on the ground that he feared persecution for his political beliefs, having, he said, been a member of the 1989 pro-democratic movement and subsequently a member of a Democracy Alliance. A delegate of the then-Minister refused to grant the visa. The appellant applied to the former Refugee Review Tribunal for a review of the delegate's decision. The Tribunal affirmed the decision of the delegate. 3 The appellant's original application had been made under the former s 36(2) of the Migration Act 1958 (Cth) ("the Act"). This sub-section incorporated the criteria, prescribed by the Refugees Convention as amended by the Refugees Protocol, for establishing refugee status. 4 On 24 March 2012, amendments to the Act came into force. They introduced a new s 36(2)(aa) which added a criterion ("the complementary protection criterion") for the granting of protection visas. 5 On 3 December 2013, the appellant applied, a second time, for a protection visa. This time he did so pursuant to s 36(2)(aa), on the basis of his claimed involvement in the pro-democracy movement in 1989, being sent to a labour camp for 16 months and feared persecution for his Christian religious beliefs. He was able to make this second application consistently with the decision of a Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71. The Court there held that a former unsuccessful protection visa applicant could make a second valid application, provided that application was based on a different criterion from that on which the original application had been made. 6 A delegate of the Minister refused the second application. The appellant sought review of the delegate's decision in the Tribunal. The Tribunal affirmed the delegate's decision. 7 The appellant then sought judicial review in the FCC. The appellant relied on five grounds. They were that the Tribunal had: failed to exercise its discretion properly by failing to take into account all relevant considerations when making its determination, in particular his claimed Christian activities in Australia; denied the appellant procedural fairness; failed to consider fairly fact-finding in relation to the appellant's claims concerning his participation in Christian activities; and failed to consider the serious harm the appellant would face if he returns to China 8 The fifth ground was that there was no evidence to support findings made by the Minister's delegate. This complaint was not directed against the Tribunal. 9 As the FCC noted, these complaints of legal error were, to some extent, expanded upon and explained in written and oral submissions before it. 10 The FCC found no jurisdictional error had been made by the Tribunal. It dismissed the appellant's application. 11 It is not necessary to summarise all of the FCC's reasons for refusing the appellant's application. This is because the appellant's notice of appeal in this Court does not challenge any of the FCC's material findings. Lest one of the grounds (Ground 2) might be construed as a complaint that the FCC had erred by not finding that the Tribunal had denied the appellant natural justice, I note the FCC's findings of this issue. The FCC found, correctly in my view, that the alleged denials of procedural fairness were, in fact, disagreements with factual findings made by the Tribunal such that the appellant's "arguments rise no higher than an attack on the merits of the Tribunal's decision and do not disclose any jurisdictional error" (at [16]). See also at [19]. 12 The appellant's notice of appeal contains four grounds. They are: 1. The … [Minister, the Tribunal and the FCC] have all failed to take all the relevant document, information and the witnesses statement into consideration, it clearly appears the bias against the applicant [sic]. 2. The … [Tribunal] denied the applicant natural justice or procedural fairness in making the determination. The … [Tribunal] has made the prejudgement before hearing. The real risk of returning to the applicant's country was not considered at all during the whole course of the hearing. 3. The … [Minister and the Tribunal] both believe the applicant would be harm-free if he returns to CHINA, which is [a] very personal assumption. 4. The … [Minister, the Tribunal and the FCC] all ignored the significant degree of involvement of Christian activities, which lasts for 18 years [sic]. 13 No particulars were provided by way of elaboration of these grounds. No written submissions were filed by the appellant. 14 The appellant appeared in person at the hearing of his appeal. He had the assistance of an interpreter. 15 He submitted that he had been in Australian for 20 years and had been a Christian for 19 of those years. If he returned to China he would have nowhere to go. He said that the Australian Government had offered protection to people like him. He was unable to develop any of the grounds appearing in his notice of appeal. 16 I have carefully examined the Tribunal's reasons and those of the FCC. I am unable to discern any jurisdictional error on the part of the Tribunal or any appealable error on the part of the FCC. On the contrary, I consider that the FCC treated the appellant's arguments with great care. The trial judge did not discover any jurisdictional error, made by the Tribunal, because there was none to be found. 17 The appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.