ASI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. INTRODUCTION 1 This is an appeal from a judgment of the Federal Circuit Court (the FCC) given on 16 August 2018 dismissing an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal). By its decision, the Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant the appellant a Protection (Class XA) visa. 2 Detailed submissions were filed by the Minister in opposition to the appeal. The appellant confirmed that these had been sight translated to him before the hearing commenced. 3 The appellant is unrepresented, as he was also in the FCC, and did not file any written submissions in advance of the appeal. However, he made oral submissions at the hearing of the appeal with the assistance of an interpreter in Mandarin and English. I set out his grounds of appeal later at [21]. 4 For the reasons set out below, the appeal must be dismissed.

2.1 The first application for a protection visa under the refugee criterion and applications for Ministerial intervention 5 The appellant is a citizen of China who arrived in Australia in 1997. He first lodged an application for a protection visa on 7 November 1997 on the ground that he satisfied the refugee criterion for the grant of a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). On 16 April 1998, a delegate of the Minister made a decision refusing to grant the appellant a protection visa. An application by the appellant for merits review to the (then) Refugee Review Tribunal (the RRT) was unsuccessful. 6 The appellant subsequently applied twice to the Minister for an exercise of the non-compellable power under s 417 of the Act.

2.2 The second application for a protection visa under the complementary protection criterion 7 In March 2012, the Act was amended so as to insert s 36(2)(aa) which created an alternative criterion for the grant of a protection visa, the complementary protection criterion. The Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 held that an applicant who had previously made an application based upon the criterion in s 36(2)(a) was not prevented from applying subsequently on the ground that she or he satisfied the complementary protection criterion in s 36(2)(aa). 8 Accordingly, when the appellant lodged a further application for a protection visa on 27 May 2014, it was valid insofar as he sought to satisfy the complementary protection criterion. While the appellant's daughter had also completed Part D of the application form indicating that she did not have her own claims for protection, the appellant said that his daughter had returned to China after the application was lodged and had not returned. As a result, the Tribunal found that it was required to affirm the decision refusing to grant the appellant's daughter a protection visa because s 36(2) of the Act provides that a protection visa can be granted only to a non-citizen in Australia (Tribunal's reasons at [3] and [43]). 9 The father claimed that he may suffer significant harm if returned to China on the following grounds. (1) In a statement accompanying his original protection visa application, the father said that he had been persecuted and discriminated against by the Chinese Communist Party on the basis of his family background but that he also feared being persecuted because of his religious activities and his involvement in the "6.4 pro-democracy movement" (a reference to the pro-democracy movement which culminated in the Tiananmen Square massacre on 4 June 1989). The father also said in the statement that he and other church members had clashed with police in demonstrating against the demolition of a Christian church in his home province and that he had been arrested for three days and given administrative punishment by his work unit. He also said that a large number of Christians had been arrested in his home province around that time. At a hearing before the RRT in January 1999, the appellant said that his main concern about returning to China related to an affair he had been having with the wife of a military official as a result of which he had been charged with violating China's Military Marriage Law. (2) In a statement accompanying his second protection visa application, the appellant said that he did not wish to return to China because of the incident (described above) involving clashes with police in relation to the demolition of a church. He referred to the fact that he had been baptised in Australia in 1999 and said that around three years before his statement, he had sent some materials about the life of Christians in Australia to his wife. He said that after she had shown these materials to her friend, his home had been searched and the officers had defined his materials as anti-communism publications and had confiscated and destroyed them. He said that they had arrested his wife and detained her for over two weeks, and they had warned her that she would be taken to a labour camp for reformation if she continued to preach. He said that they had added that they suspected that the appellant was a terrorist because he had sent her these materials. 10 On 26 February 2015, a delegate of the Minister made a decision refusing to grant the appellant a protection visa.

2.3 The Tribunal's decision on the second protection visa application 11 The appellant applied to the Tribunal for merits review of the delegate's decision. The appellant attended a hearing before the Tribunal on 2 November 2016. He gave evidence at that hearing, as did his sister and a reverend from the church which he attended in Australia. The Tribunal made its decision on 31 January 2017. 12 While acknowledging that the reverend had said that the appellant was of very good character, the Tribunal nonetheless found that the appellant was not telling the truth in significant parts of his evidence (Tribunal's reasons at [32]). The reasons for the Tribunal's conclusion in that respect, and its ultimate decision, were accurately summarised in the first respondent's submissions to the FCC at [13] to [17], which the primary judge adopted in his reasons at [8]: 13. For the following reasons, the Tribunal did not accept that the applicant was telling the truth in significant parts of his evidence (at [32]): (a) while he claimed in his first protection visa application that his father was classified as an anti-revolutionary and he himself had participated in a pro-democracy unit, in the second protection visa application he provided details of the qualifications and employment he was able to obtain in China prior to travelling to Australia (at [32]); (b) in the second protection visa application, he said that he had no difficulty obtaining a passport and that he left China legally; however at the hearing he said that was not correct and that he had relied on someone on the "inside" to help him get his passport (at [32]); (c) there was no evidence to support the claims made in his first protection visa application that [many] Christians had been arrested in 1994 and that a specific Christian church was demolished, and instead there was evidence of significant numbers of Christians in certain provinces (at [33]); (d) it was difficult to reconcile the movements of the applicant's daughter freely returning to China from Australia on a number of occasions with the applicant's claim that his wife had been detained for [over two weeks] and warned that she would be taken to a labour camp after Christian-related materials he had sent to her from Australia had been discovered (at [36]); and (e) the Tribunal did not accept that the applicant's daughter had been unable to return to Australia because the family home is regarded as a house church, because she took pamphlets from his church here back to China, or because she, the applicant or the applicant's wife have attracted the adverse attention of the authorities (at [37]). 14. Accordingly, the Tribunal did not accept that the applicant had ever been of any interest to the Chinese authorities, that there were problems preventing him from returning to China, that his father was classified as an anti-revolutionary, that he participated in a pro-democracy movement, that he had conflicts with local police, that he used connections to obtain his passport, that he will be regarded as an anti-revolutionary, that he was liable to imprisonment or that his "escape from China" will be treated as an act of treason (at [38]). The Tribunal also did not accept that the applicant was charged with an offence under China's Military Marriage Law as a result of an affair and gave greater weight to the issues with his evidence than the summons/subpoena produced to support that claim (at [39]). Further, and in the alternative, [the Tribunal found that] that law is one of general application and any risk of trial and a prison sentence is a risk that applies to the population of China generally (at [39]). 15. The Tribunal also did not accept that the review applicant will experience significant harm in China on account of his medical conditions, despite the likelihood of exacerbation (at [40]). 16. The Tribunal accepted the applicant's claimed baptism and religious practice in Australia; however, the country information indicated that the Chinese government allows a lot of freedom to house churches in China and there was no evidence of problems in his province (at [41]). Accordingly, the Tribunal did not accept that he faced a real risk of significant harm as [a] result of his involvement in the underground or unregistered church in his province (at [41]). … 13 The Tribunal therefore concluded that the appellant did not satisfy the complementary protection criterion (Tribunal's reasons at [43]).

2.4 The application for judicial review in the FCC 14 The appellant relied upon eight grounds in his application for judicial review before the FCC. 15 The primary judge held that he was not satisfied that the Tribunal's decision was affected by jurisdictional error and accordingly dismissed the application for relief. 16 In so finding, first, the primary judge found that the appellant's oral submissions and a number of grounds of judicial review merely expressed disagreement with, or took issue with the merits of, the Tribunal's findings but that this was not a sufficient basis on which to find a jurisdictional error on the basis of which the Tribunal's decision could be set aside (FCC reasons at [11], [22], [23]-[24]). 17 Secondly, the primary judge found that insofar as the appellant challenged the decision of the Minister's delegate, "that could not affect the Tribunal's authority to decide because the Tribunal's decision properly made, will in effect, cure any defect in the delegate's decision: Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495": FCC reasons at [13]. 18 Thirdly, the primary judge rejected the contention that the Tribunal had focused upon questions which were irrelevant to his claims (FCC reasons at [14]-[16]). To the contrary, the primary judge held that the questions asked about the appellant's claims in support of his first visa application could, if accepted, be critical to the Tribunal's decision and were necessary in order to afford the appellant an opportunity to address the Tribunal's concerns about those claims. 19 Fourthly, the primary judge held that the fact that the Tribunal asked questions about the appellant's credibility did not establish that the Tribunal was biased. Rather he considered that asking such questions was necessary in order for the Tribunal to give the appellant an opportunity to address its concerns in the discharge of its obligation under s 425 of the Act (FCC reasons at [17]-[18]). Equally, the primary judge rejected the contention that the Tribunal's reasons themselves demonstrated either actual or apprehended bias (FCC reasons at [19]-[21]). Nor did the Tribunal ignore any crucial facts (FCC reasons at [25]-[27]) or deny the appellant the opportunity to present his claims (FCC reasons at [28]). 20 Finally, while a certificate had been issued under s 438 of the Act the existence of which had not been disclosed to the appellant for comment, the FCC held that the Tribunal correctly concluded that the documents the subject of the certificate were not relevant to the review (FCC reasons at [32]-[36]). "Simply put", his Honour found, "there is nothing in any of the documents, including those which referred to the applicant, which could possibly have had an effect on the Tribunal's decision, see Minister for Immigration & Border Protection v CQZ15 (2017) 253 FCR 1 at [69]": FCC reasons at [35].

3.1 The grounds of appeal 21 The grounds of appeal plead that: 1. The first respondent and the second respondent have not taken all the relevant documents and information into careful consideration, in the interview, the first and second respondents have questioned the credibility of the applicant with no reasonable doubts. 2. The first and second respondents have not fairly accessed the application and did not consider the serious harm will be facing by the applicant. 3. The applicant has not have the financial fund to seek proper legal advice in the Federal Circuit Court, it caused the bias from the FCC which affect the decision from the FCC 4. The interpreting service provided to the applicant is poor, the translation is not 100% accurate and influenced the final decision. 22 The grounds of appeal fail to specify the nature of the errors allegedly committed by the Court below or the Tribunal and are therefore unparticularised. Nor, save in one respect, were these grounds elaborated upon in the appellant's submissions. In those circumstances, they must ordinarily be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Lucev J) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)). 23 However, given that the appellant is unrepresented and the seriousness of the consequences for him if his appeal is dismissed, I have considered whether there is any error in the reasons of the FCC of the nature alleged notwithstanding the absence of any particulars.

3.2 Ground 1: alleged failure to take all relevant matters into consideration 24 Ground one of the notice of appeal was not raised before the primary judge. That being so, the appellant requires leave to raise the new ground. The Minister submits that leave to raise ground one for the first time on the appeal should be refused for the reason that the ground lacks sufficient prospects of success. However, given the seriousness of the consequences of the appeal for the appellant, the fact that he was unrepresented below and on the appeal, and that the Minister does not allege that he would suffer any prejudice if leave were granted, I consider that it is in the interests of justice to grant leave to raise the new ground. Nonetheless, I consider that the ground must be dismissed. 25 First, insofar as ground 1 (and, for that matter, ground 2) challenges the primary judge's findings with respect to the decision of the Minister's delegate, the FCC did not have jurisdiction to review the Minister's decision because it was a primary decision as defined by s 476(2)(a) of the Act. Further, and in any event, any error by the Minister's delegate would have been "cured" by the Tribunal's conduct of the application for merits review, as the primary judge held in his reasons at [13]. 26 Secondly, in his oral submissions on the appeal, the appellant submitted that the Tribunal had failed to consider a claim to fear harm on the ground that it may have come to the attention of the Chinese authorities that he had applied for a protection visa when he had to renew his passport at the Chinese Embassy in Australia. In this regard, the appellant pointed to photocopies of his Chinese passport which bore stamps disclosing that he had been granted bridging visas pending the finalisation of a visa application. However, the stamps did not in terms disclose what visa he had applied for. Furthermore, while the bridging visas stamped on his passport each bore numbers, one set of numbers was described simply as an "application receipt no", while the other number was different on each stamp suggesting that it could not be used to identify the nature of the visa to which the application related. 27 Further and in any event, the appellant did not put a "substantial, clearly articulated argument" that he feared harm on this ground (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court)). Nor could it be said that the claim arose "sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence" (NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J (as his Honour then was) (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124)). In reaching this conclusion I note that I read through all of the documents submitted by the appellant in support of his protection visa applications contained in the appeal book but did not identify any point at which the argument was put or alluded to. I understand that the appeal book contained all of the information contained on the Department's and Tribunal's files save for the documents which were covered by the s 438 certificate and separately tendered subject to confidentiality orders. As I later explain, those documents were irrelevant to the appellant's application. 28 In these circumstances, the Tribunal did not fall into jurisdictional error in failing to consider any such claim. 29 The appellant has not otherwise demonstrated a failure by the Tribunal to consider any claim, or aspect of a claim, made by him, or to consider any item of evidence of sufficient importance to constitute a jurisdictional error: Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [112] (Robertson J); and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [54]-[57] (the Court). As such, ground 1 must be dismissed.

3.3 Ground 2: compliance with the rules of procedural fairness 30 With respect to ground 2, the Tribunal was required to comply with the requirements of procedural fairness set out in Division 4 of Part 7 of the Act. As the Minister points out, pursuant to s 422B(1) of the Act, those provisions constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which they deal. There is nothing to suggest that the Tribunal did not comply with these statutory obligations. By a letter dated 6 October 2016, it invited the appellant to a hearing on 2 November 2016 in accordance with s 425 of the Act (see Appeal Book at p. 323) and afforded the appellant an opportunity to comment on any adverse material which may form part of its reasons for decision and to lead evidence, as he in fact did including leading evidence from two witnesses. The extensive record of the hearing set out in the Tribunal's reasons also indicates that it in fact put the appellant on notice of its concerns about material aspects of his claims at the hearing and afforded him an opportunity to comment on those concerns. It follows that I do not consider that the FCC erred in finding that no breach of procedural fairness had been established.

3.4 Ground 2: alleged failure by the Tribunal to consider whether the appellant might suffer "serious harm" 31 With respect to the alleged failure by the Tribunal to consider whether the appellant might suffer "serious harm" if returned, the question for the Tribunal was rather whether there is a real risk that an appellant will suffer "significant harm" if returned to China, as the Tribunal found in its reasons at [4]: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). Importantly, the term "significant harm" for the purposes of the complementary protection criterion in s 36(2)(aa) is defined in s 36(2A) and does not bear its ordinary meaning. In any event, the Tribunal addressed the correct question in its findings. It follows that ground 2 is not made out. 32 It seems that the appellant's complaint is ultimately that he does not agree with the Tribunal's finding that he would not suffer significant harm if returned to China. However that is a matter which, as the primary judge held, is not open to a court to consider. The jurisdiction of the FCC is confined to deciding whether the Tribunal's decision was made lawfully under the Act, that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the FCC wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant's visa application must be assessed under the Migration Act, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the FCC has jurisdiction to grant the appellant a visa, to consider whether he satisfies the criteria for the grant of protection visas, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether this Court or the Court below agrees with the Tribunal's decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

3.5 Ground 3: alleged bias 33 With respect to ground three, the fact that the appellant lacked the financial means to seek legal advice with respect to his application before the FCC does not evidence any bias or apprehended bias on the part of the primary judge. As I held in DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270 with respect to an allegation of bias on the ground that the Court had declined in that case to refer the matter for pro bono legal representation: 27. … There are, however, many individuals who appear before the Federal Court and in other courts without legal representation and this reality would be known to the fair-minded lay observer. The duty of the court in such cases has been carefully spelt out and does not extend to a duty to obtain legal representation for the unrepresented litigant. 34 Nor is there anything to suggest that the primary judge did not comply with his obligation "to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial": Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [311] (Beazley JA, with whom Giles and Whealy JJA agreed) (approved in e.g. SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whom Allsop CJ and Mortimer J agreed)).

3.6 Ground 4: alleged inadequacy of the quality of interpreting 35 It is not clear whether ground 4 is a complaint about the quality of interpreting at the Tribunal hearing or before the FCC. In any event, no specific errors or deficiencies in interpretation have been identified in either forum and no further evidence such as a statutory declaration by a suitably qualified interpreter as to the standard of interpreting at the hearing was relied upon. Furthermore, as the Minister submits, the authorities concerning the standard of interpretation in the context of alleged breaches of ss 360 and 425 of the Act hold that word-perfect interpretation is not required. Rather, as Edelman J held in BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at 52, "interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a 'perfect' interpretation". Similarly the Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017, Judicial Council on Cultural Diversity) explain at p. 81 that "[a] common misconception is that accurate interpreting equates to literal, word for word translation. Due to differences across languages, including grammatical, pragmatic and cultural, literal translations are rarely possible." In short, the appellant has failed to establish an evidential basis for the generalised submission of deficient interpreting either before the Tribunal or the FCC.

3.7 The s 438 certificate 36 Finally, I agree with the Minister's submission that no appealable error is disclosed by the primary judge's reasons with respect to the certificate issued under s 438(1)(b) of the Act. In this regard, the Tribunal found at [5] that: As a preliminary matter, there is a notification given by a delegate of the Minister under subsection 438(2) of the Migration Act at folio 169 of the Department's file …Paragraph 438(1)(b) applies to a document or information given to the Minister, or to an officer of the Department, in confidence. Subsection 438(2) permits the Secretary to notify the Tribunal that section 438 applies in relation to a document or information and to give the Tribunal written advice about the significance of the document or information. The notification relates to folios 154-162, 164 and 165 of the Department's file … which it states "contain information about a third party". Folios 154-162 are documents relating to another person seeking Ministerial intervention which have mistakenly been placed on [the appellant's] file. Folios 164 and 165 are two pages of a submission to the Minister referring to five people seeking Ministerial intervention including [the appellant]. I record that in my view none of these documents are relevant to this review. 37 The certificate is reproduced at p. 21 of the Appeal Book. The documents the subject of the certificate were tendered on the appeal subject to appropriate confidentiality orders. The short point is that the documents were wholly irrelevant to the appellant's claims, as the Tribunal and the primary judge found. As such, the failure to disclose the existence of the certificate or the documents could not on any view constitute a jurisdictional error.

4. CONCLUSION 38 For the reasons set out above, the appeal must be dismissed. The appellant is to pay the respondent's costs of the appeal as agreed or assessed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.