Ground 1
38 The appellant represented himself at the hearing before me with the assistance of an interpreter. In his written grounds he said that the primary judge did not show any careful consideration of the grounds he presented. At the hearing, the appellant said that the primary judge failed to consider that if he were returned to China, he would not be able to survive because he had no land. He referred to the fact his father was punished for protecting Falun Gong practitioners in the past.
39 The appellant's complaints about the Tribunal's reasons are best described as first, a complaint that he was disbelieved as to personal experiences that affected him and were relevant to his claim that he feared persecution on the basis of imputed connections to Falun Gong and that in reaching that finding the Tribunal failed to refer to the Post-hearing Submission; and second, a complaint that his 'subsistence' argument was not properly considered because he was disbelieved and evidence was not taken into account.
40 The Minister submitted that whilst the reasons given by the primary judge were brief, they were adequate in that they explained the basis of the primary judge's reasoning in rejecting the appellant's contentions. The Minister further submitted that the grounds below could not have succeeded and the reasons for judgment do not overlook, fail to address, or indicate any misapprehension in respect of any argument advanced to the Court by the appellant (referring to DAO16 at [48]).
41 Counsel for the Minister also submitted before me that whilst the primary judge did not refer to the mother and brother moving to Canada and the primary judge did not engage with the appellant's claim that the farming land has been taken away, nothing turns on those claims because even if it were the case that the land was taken away, that fact does not lead to a conclusion that the appellant would be unable to subsist. The Minister referred to the Tribunal's rejection of the appellant's claim that he would be unable to work and the Tribunal's reference to the appellant having other family members in China.
42 There is no doubt that the primary judge's reasons are brief. The adequacy of reasons of a Federal Circuit Court judge in the context of such migration review applications has been considered in a number of cases.
43 In some of those cases, although reasons were considered inadequate, the appeal court has in effect been obliged to consider the original review grounds and remittal was considered futile, due to insufficient prospects of success: for example, CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93]-[94]; Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [31]-[33].
44 In other cases, the reasons, despite their brevity, were considered sufficient: for example, DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [33]; DTG16 v Minister for Immigration and Border Protection [2018] FCA 143 at [14]-[22]; DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [73]-[78]; EGN17 v Minister for Immigration and Border Protection [2018] FCA 1810 at [26].
45 In other cases, reasoning has been held to be inadequate and the matter remitted to the Federal Circuit Court, on the basis for example that it is the obligation of the Federal Circuit Court to explain why an application for judicial review is dismissed, and that obligation is not to be impermissibly shifted to this Court: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [48]; AXE16 v Minister for Immigration and Border Protection [2018] FCA 646 at [24]-[30]; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [74]-[78]; COZ16 at [47]-[48], [61]; DAO16 at [46]-[49] (remitted to Tribunal).
46 The authorities are to be viewed against the backdrop that it is established that the requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ).
47 As explained in DAO16, it is necessary for the primary judge's decision to reveal the basis upon which they reached their decision. Appealable error will be established where the primary judge addresses the grounds of judicial review by stating the conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed, or the reasons do not disclose that the primary judge considered fundamental aspects of the appellant's case. To find, for example, that 'adverse findings were open and cannot be said to lack an evident and intelligible justification' is merely to assert a conclusion: at [48].
48 A primary judge may fall into error where they fail to conduct an analysis or evaluation of the primary decision-maker's findings and merely accept and act upon the primary decision-maker's assertions: COZ16 at [48].
49 At the same time, mere brevity of reasons or the fact that they are delivered ex tempore does not of itself indicate a failure to give adequate reasons: COZ16 at [33]-[36]; EGN17 at [26].
50 In this case, ground 1 of the appeal is put generally but requires a consideration of the treatment of the primary judge of both:
(1) the adverse credibility finding insofar as it relates to the claims of fear on the basis of links to Falun Gong; and
(2) the reliance on such adverse credibility finding to dismiss the appellant's claims insofar as his claimed fear based on future subsistence is concerned.
51 As to the adverse credibility findings relating to the appellant's own links to Falun Gong, the primary judge's reasons are at [16]-[19] of his reasons, as included above. At [16], the primary judge did in fact summarise and consider, albeit extremely briefly, matters to which the Tribunal had regard in making the credibility findings. So much can be seen from the reference to the Tribunal having identified that the claim about Falun Gong documents had not been made in the appellant's initial protection claim, the nature of the information given at the compliance interview and the delay in bringing a protection application. The primary judge at [7] and [8] of his reasons also referred to the Tribunal's reliance upon the conflicting evidence at the compliance interview and the delay in applying for the protection visa. Whilst it is regrettable that the reference at [17] to reasons 'as summarised above' does not disclose more clearly the relevant summary, it does seem that the Tribunal's relevant reasons are identified and considered by the primary judge at [16], when read with [7] and [8]. The conclusion at [17] that 'the adverse findings cannot be said to lack an evident and intelligible justification', in contrast to the position in other cases, is therefore not made in isolation but after several matters have been identified at [16].
52 At [18] the primary judge stated that it is apparent from the Tribunal's reasons that it took into account the Post-hearing Submission. The primary judge did not state how it is 'apparent'. At [19] the primary judge stated that:
The Tribunal's decision sets out, at paragraph 24, the post-hearing submission including considering the appellant's explanation as to why he had not mentioned the Falun Gong material … .
53 The paragraph of the Tribunal's reasons identified by the primary judge ([24] of Tribunal's reasons) sets out verbatim the Post-hearing Submission. That paragraph does not include any 'consideration' of the matters raised.
54 However, having reviewed the Tribunal's reasons as a whole, it can be inferred safely that the Tribunal in fact took the Post-hearing Submission into account. This can be gleaned from the references in the Tribunal's reasons at [45], [48] and [50] to information that was provided only by way of the Post-hearing Submission: that is, that the copy of the father's PIF referred to his evidence about authorities visiting the family home after he departed and such evidence was hearsay; that the appellant was virtually petrified at the compliance interview and the scene triggered a flashback of what happened to him in China; that the PIF referred to the children being kicked out of school in contrast to the appellant's own evidence that he completed school. I note that it is also established that a delay in applying for a protection visa is a matter to which the Tribunal may properly have regard in support of an adverse credibility finding: Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 301 at [11].
55 Additionally, the appellant specifically contended before the primary judge that the Tribunal failed to take into account his explanation in the Post-hearing Submission about his failure to raise at an early stage the alleged discovery of the Falun Gong materials in his home. The concern expressed by the Tribunal in its letter of 21 February 2018 inviting comment was that the appellant had failed to refer to the Falun Gong materials in his written statement (of 30 May 2014) and had first referred to them during his interview with the delegate on 23 October 2015. In response, the appellant's agent wrote:
When it comes to the third concern raised by the Presiding Member, we noted that the review applicant did raise this in the interview with the delegate of the minister, which was before the primary decision made on 23rd of October, 2015. In page 7 of the decision record, [the decision maker] states:
"The applicant claims to fear investigation and harassment based on his being accused of sheltering a Falun Gong practitioner during a time when no other family members were at home…. further at the applicant stated that antigovernment documents were found at his home address relating to "propagating Falun Gong' and "Nine Chapters commenting on the Communist Party" He said these documents had belonged to his father's cousin who was arrested and claimed his father had warned him about the antigovernment documents founding the family home by the authorities.
Regardless of whether the review applicant put it in his written statements of claims or not, [the appellant] raised it to the then DIBP decision maker who subsequently, accepted that 'antigovernment documents claimed to have been founding the family home could be perceived by the Chinese Authorities as an implied expression of political opinion". It is not a new claim, and [the appellant] apparently took the opportunity in the previous interview and raised the decision maker. Therefore, we submit the Tribunal should not draw an inference unfavourable to the credibility of his claims.
56 The primary judge characterised the deficiency with this submission at [19] as follows:
The submission did not explain the inconsistency but rather contended that the Tribunal ought not to have been concerned about the inconsistency.
57 The Post-hearing Submission did not show that the documents were referred to prior to the interview with the delegate, nor did it provide a reason why the appellant delayed in disclosing the existence of the documents until that interview. Instead, it invited the Tribunal not to draw an adverse inference, despite the delay, apparently on the basis that the delegate accepted the claim. It was open for the Tribunal to draw an adverse inference due to the unexpected delay in disclosure about the documents where it had invited the appellant to explain the delay, and the appellant had not done so.
58 In any event, the delegate's reasons do not expose that she accepted that the Falun Gong documents were found in the appellant's home. Rather, her reasons demonstrate that she had regard to the appellant's claim about those documents, but not that she accepted that claim as true. In any event, the Tribunal was not obliged to follow the delegate's decision.
59 In conclusion, there are certain deficiencies in the reasons of the primary judge as identified in [51]-[53] of these reasons with respect to his consideration of the credibility findings that are based on the matters referred to by the Tribunal and summarised at [23]-[25] of these reasons. It would have been preferable for the primary judge to address the appellant's arguments and exposed his reasoning in a more fulsome manner so that the appellant could clearly see that the arguments had been addressed and the basis upon which they were rejected. But it cannot be said that the reasons were so inadequate as to justify a finding that the primary judge failed to exercise jurisdiction. It would be futile to pursue further the contention that the Tribunal failed to have regard to or consider the Post-hearing Submission when it is apparent that it did so.
60 The two paragraphs ([20] and [21]) of the primary judge's reasons devoted to the appellant's claim that his land had been taken and he would have no way to subsist if he were returned to China are more problematic.
61 The Tribunal's wholesale rejection of the appellant's evidence as to personal experiences that he said had happened to him undermined his claimed Falun Gong link. That rejection was based upon the Tribunal's view that the appellant had in fact fabricated those particular experiences. Because it formed that view of the appellant as a witness, and so found that he had a 'propensity to fabricate his claims', the Tribunal did not accept as truthful his evidence that the authorities had taken his land and he would be unable to work in China. In coming to that conclusion, it did not refer to evidence that might, at one level, be considered consistent with the appellant's claim, namely the evidence that his mother and brother have also moved to Canada and been granted permanent residency, leaving the land apparently unattended. The appellant contends that the primary judge failed to deal with this issue (the appellant contended it is 'self-evident' that the land had been taken, but I note that there was no evidence about the status of the land apart from the appellant's own testimony).
62 The Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 addressed in detail the principles that apply when credit findings are challenged. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credit are not open on a number of grounds, such as the failure to afford procedural fairness, reaching a finding without any logical or probative basis or unreasonableness: see CQG15 at [36]-[44], noting the reference to SZSHV v Minister for Immigration and Border Protection [2014] FCA 253.
63 In SZSHV, Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour said as follows:
[31] In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.
The Tribunal in that case had found the claimant had been "untruthful", including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant's account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:
[119] The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal's rejection of the applicant's claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal's approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.
[120] The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.
[121] To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant's claims; (2013) 212 FCR 99 at 132.
See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that "the adjectives 'ignorant', 'arbitrary' and 'perverse' aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document". Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
64 The primary judge did not address whether the Tribunal's finding that certain evidence was fabricated properly justified the rejection of the evidence about the land being taken and that the appellant's ability to work depended on having such land. The rejection of that evidence was on the basis of a 'propensity to fabricate'. The primary judge's approach in the two relevant paragraphs of his reasons is not the nuanced approach referred to in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78], as cited in the above extract from SZSHV. It does not deal with questions of credit by considering whether the Tribunal's disbelief as to the Falun Gong related links meant that it was appropriate for the Tribunal to also disbelieve the appellant generally, and so disbelieve his claim that the land was subsequently taken from the family.
65 The Tribunal did not address the fact that the brother and mother had departed China and were now permanent residents of Canada. Such evidence may or may not have influenced a credibility finding on that particular aspect of the appellant's evidence, because it was at least relevant to the appellant's claim that he was told by authorities that the land would be taken if the family were no longer living there. In my view, the primary judge should have addressed that matter in his reasons and it follows that I do not consider he properly considered the submission made by the appellant. It was not enough to dismiss any requirement on the part of the Tribunal to take such evidence into account evidence solely on the basis that the appellant was generally disbelieved. Because of the primary judge's abridged approach to the appellant's submission about the land, any relevance of the loss of the land to his protection visa application was not properly addressed for the benefit of the appellant.
66 However, in the circumstances, the appellant has not suffered any practical injustice from the failure of the primary judge to properly address that claim: compare Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [37]. For the following reasons, a dismissal of the appellant's claim was inevitable and the Tribunal made no jurisdictional error in the way in which it disposed of it.
67 Not that it is necessary to review the delegate's reasons for this appeal, I note that in her October 2015 reasons, the delegate of the Minister had expressly noted that a fear of having no land to farm does not meet the definition of harm under s 36(2A) of the Act.
68 Although the Tribunal did not expressly note that aspect, it was clearly cognisant of the relevant definition. It set out in its reasons the criteria for a protection visa, including the refugee criterion (s 36(2)(a) of the Act) and the complementary protection criterion (s 36(2)(aa) of the Act). It noted, correctly, that to justify complementary protection, the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The Tribunal noted that 'significant harm' is defined exhaustively in s 36(2A) and by reference to s 5(1). So much was also confirmed in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 at [24]. Section 36(2A) provides as follows:
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.
69 Had the primary judge addressed the question raised by the appellant as to the land fully, then there is little doubt that he would have found that there was no jurisdictional error on the part of the Tribunal in dismissing the appellant's claims. A dismissal was inevitable on the basis that there was no evidence that the claims based on alleged lack of land and an inability to work would comprise a recognised basis for complementary protection under s 36(2)(aa) of the Act (as alleged by the appellant).
70 I have accepted there is no appealable error with respect to the first aspect of ground 1 of this appeal, that is, the primary judge's consideration of the Tribunal's rejection of the appellant's claim to fear persecution based on political opinion or links to Falun Gong.
71 I accept that the primary judge's reasons as to the second aspect of ground 1 of this appeal are deficient. However, it is futile to remit this matter for further consideration by the Federal Circuit Court when the information that the appellant relies upon as founding his protection claim is before this Court and where, because of the definition of s 36(2A), there is no risk of merits review. Even if the Tribunal had accepted that the land formerly farmed by the appellant's family had been seized or was no longer accessible to the appellant, nothing in the appellant's evidence could properly be said to approach or meet the s 36(2A) definition of significant harm. Further, the appellant had found work in Australia. The Tribunal's rejection of his claim that he would be unable to work at all if he were returned to China had a basis in the appellant's own evidence. Therefore, in my view the Tribunal's ultimate decision was correct and no material error is disclosed. I accept the Minister's submission in this regard (see [41] of these reasons).
72 It follows that ground 1 of the appeal is dismissed.