FEDERAL COURT OF AUSTRALIA SZVSE v Minister for Immigration and Border Protection [2017] FCA 1435 Appeal from: SZVSE & Ors v Minister For Immigration & Anor [2017] FCCA 1654 File number: NSD 1291 of 2017 Judge: PAGONE J Date of judgment: 5 December 2017 Catchwords: MIGRATION – appeal – jurisdictional error – error of fact – materiality of factual error – error immaterial to decision – appeal dismissed Cases cited: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164 SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 Date of hearing: 22 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Solicitor for the Appellants: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Australian Government Solicitor ORDERS NSD 1291 of 2017 BETWEEN: SZVSE First Appellant SZVSF Second Appellant SZVSG (and another named in the Schedule) Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 5 DECEMBER 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 The appellants appeal from a judgment of the Federal Circuit Court of Australia dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal: SZVSE v Minister for Immigration and Border Protection [2017] FCCA 1654. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant Protection (Class XA) visas. 2 The appellants are citizens of China who applied for the visas on 19 November 2012. The first appellant is married to the second appellant and their children are the third and fourth appellants. The first appellant claimed to fear harm from the Chinese authorities if he were to return to China. A delegate of the Minister refused on 2 August 2013 to grant the appellants protection visas which they had applied for. On 14 August 2013 the appellants applied to the Refugee Review Tribunal for review of the delegate's decision, but the Tribunal affirmed the delegate's decision on 28 October 2014 after hearings before the Tribunal on 9 January 2014 and 16 October 2014. The Tribunal's reasons included reference to a question which had not been asked and a corresponding answer which had not been given. The appellants' application for judicial review by the Federal Circuit Court was unsuccessful with the Court finding that the Tribunal had not made a jurisdictional error. The appeal from that decision to this Court is on the ground that the decision of the Tribunal was infected with jurisdictional error. 3 The Minister concedes that the Tribunal made an error of fact in its decision but submitted that the error was not material or otherwise jurisdictional. The error was at [45] of the Tribunal's reasons in the following sentence: When initially asked whether he had any concerns about returning to China so shortly after being detained, [the appellant] said no [emphasis in Tribunal's decision]. It was correctly conceded by the Minister that the appellant had never been asked "whether he had any concerns about returning to China so shortly after being detained" and that the appellant had never given the answer "no" to such a question. 4 Not every error made by a Tribunal in reaching a decision will give rise to jurisdictional error: see SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [22]. In that context a distinction is to be drawn between "the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-findings": see MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83]. An error of fact based on a misunderstanding of evidence in considering an applicant's claims is not jurisdictional as long as the error was not that the Tribunal had not considered the claims: see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]; MZXSA Minister for Immigration and Citizenship [2010] FCAFC 123 at [83]. In SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164 the Full Court said at [42]: The Full Court in MZXSA drew a distinction between a failure to address a claim and its integers, on one hand, and errant fact-finding on the other hand. It was the former and not the latter which gave rise to jurisdictional error. The Full Court in MZXSA also endorsed the observations of North and Lander JJ that an error of fact based on a misunderstanding of the evidence in considering an applicant's claim did not amount to a jurisdictional error so long as it did not mean that the Tribunal had not considered those claims. In the present case it was submitted for the appellants that the Tribunal's error resulted in a failure by the Tribunal to have considered the appellant's claim. 5 An element of the first appellant's claim had been of having been detained by the Chinese police in August 2009 and of having been beaten while in custody by other detainees at the behest of the police. The erroneous fact upon which the Tribunal's decision was partly based was a reason for the Tribunal rejecting as credible his evidence of having been detained and mistreated by the Chinese authorities in August 2009. 6 The Tribunal's error in the present case was not a failure by the Tribunal to consider the claim which the first appellant had made. His claims had included having been detained and mistreated by the Chinese authorities in August 2009 and that claim was expressly considered but rejected by the Tribunal which recorded the claims made by the first appellant and the evidence relied upon by him about what occurred but concluded at [60] that it did not accept that the first appellant had been approached by the Beijing State Security Bureau in 2009 or that he had been taken to the police by Bureau officers where he was detained, assaulted by other prisoners and then taken to hospital under police guard. The error made by the Tribunal did not result in misunderstanding the first appellant's claim about being detained and mistreated in August 2009, or in failing to deal with it, or in obscuring its understanding of the claim: see MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [85]. 7 An error of fact may nonetheless be a jurisdictional error where it is demonstrated that the error is material to the decision: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [89]. Whether the error was jurisdictional requires the Court to assess the importance of the error to the exercise of the Tribunal's function. In Minister for Immigration v SZRKT (2013) 212 FCR 99 Robertson J said at [111]: In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. In Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 Griffiths and Moshinsky JJ said (Logan J agreeing) at [63]-[65]: 63. The first judicial review ground pressed by the appellant below was to the effect that the Tribunal fell into jurisdictional error in its fact-finding concerning the appellant's recollection of ingredients used to cook risotto and chicken schnitzel. This necessarily raised the issue of the extent to which such findings of fact were amenable to judicial review for jurisdictional error. The Minister correctly acknowledged that such findings are not impervious to judicial review. Mr Johnson, who appeared for the Minister, properly accepted that jurisdictional error could be established if, for instance, the findings were illogical or based on no evidence at all. 64. That is not, however, an exhaustive statement of the scope of judicial review for jurisdictional error of fact-finding. As the Full Court recently observed in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [38] per McKerracher, Griffiths and Rangiah JJ, findings of fact, including findings of fact relating to credibility, are susceptible to judicial review on several grounds: 38 There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: (a) failure to afford procedural fairness; (b) reaching a finding without any logical or probative basis; (c) unreasonableness; and/or (d) jurisdictional error as discussed by Flick J in SZVAP. 65. It may also be accepted that, where jurisdictional error is established in relation to the Tribunal's fact-finding, it must also be demonstrated that the error is material to the decision which the Tribunal actually made (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [89] per McHugh, Gummow and Hayne JJ). When evaluating the significance of any fact said to be erroneous it is important to bear in mind that what is to be evaluated is its significance to the exercise of jurisdiction. That is why an error resulting in a failure to consider a matter required to be considered may go to jurisdiction whilst errant fact finding will not. The analytical inquiry to be undertaken is into whether the error reveals a failure by the Tribunal to have exercised its jurisdiction rather than whether it has made a mistake in the exercise of its jurisdiction. The inquiry is not, for instance, whether the erroneous fact was intrinsically important, but whether the error reveals a failure to exercise power. 8 The error by the Tribunal in the present case was not jurisdictional in that sense. It is true that one of the reasons for the Tribunal rejecting the claims made by the first appellant was the Tribunal's error about the first appellant having been asked about having had any concerns about returning to China so shortly after being detained, and the corresponding error about his answer of not having any concerns about returning to China, but those errors were one reason amongst a number of others through which the Tribunal correctly addressed the issues it was required to consider in exercising its jurisdiction. The Tribunal assessed the evidence of the first appellant and considered that his claim about events in August 2009 was not credible. The first appellant was not expressly asked "whether he had any concerns about returning to China so shortly after being detained" but he had been asked about going back to China from Japan shortly after those events. The questions and answers numbered 47 to 49 in the Tribunal were as follows: Q47 I have some difficulty understanding why, if you were – if you'd been, as you say, arrested, detained, mistreated badly in police custody, hospitalised and accused of providing accommodation to North Korean defectors that you would go to Japan, a country that has ratified the Refugee Convention and not seek asylum there when you were there in 2009. Did you want to comment on that, [the first appellant]? A The purpose of me going to Japan was very simply, just to shut our business. Q48 But what I'm saying is I have difficulty understanding why if you had experienced what you told me you experienced you wouldn't have thought about seeking asylum abroad at that point in time. A Because it was my understanding that the matter was almost finished. Q49 But it seems to me from your evidence that you have been ordered to close your business and your source of livelihood in China so it just doesn't make a lot of sense to me that rather than considering going to Japan where you could have sought protection and you actually had a business established you would've gone to Japan, closed that business in Japan and shut down the potential source of income and then gone back to China. A My son was born there. I went there alone, by myself. By each of these questions the Tribunal was seeking to evaluate the claim by the first appellant about having in August 2009 been arrested, detained, mistreated badly in police custody, hospitalised and accused of providing accommodation to North Korean defectors. It was that claim which was being evaluated by reference to his travel to Japan and return to China after the events which he claimed had happened. The Tribunal's consideration of an erroneous negative answer to a question that was never put in express terms was considered in the broader context of that travel from Japan and voluntary return to China within 4 days, which the Tribunal considered to have cast doubts upon his claim of harm in August 2009. At [45]-[47] the Tribunal said: 45. I consider the fact [the first appellant] travelled to Japan shortly after he claims he was detained and mistreated and then voluntarily returned to China four days later casts doubts upon his claims of past harm in August 2009. Despite having claimed to have been detained and mistreated by the Chinese authorities in August 2009, on 26 August 2009 [the first appellant] departed China on a valid passport issued in his own name and travelled to Japan before returning to China four days later on 30 August 2009 (Tribunal file, folio 113). When initially asked whether he had any concerns about returning to China so shortly after being detained, [the first appellant] said no. The Tribunal then reminded [the first appellant] that in his written statement he had said when the police told his wife they would release him soon, but they must stop business and that he was also informed he was on a blacklist and told that he must report to the Police whenever he needed to travel and he must present himself when called to the police and that these words sent shivers down his spine (Departmental file, folio 32). [The first appellant's] evidence then said he reported to the police before he travelled Japan and they asked him whether he was travelling alone or with friends. 46. I found [the first appellant's] evidence to the Tribunal about why he travelled to Japan for four days in August 2009 confused. When he was initially asked by Tribunal why he went to Japan, he said he was deeply hurt, physically and mentally. When asked whether there was any other reason he went to Japan, he responded no. When asked how long he stayed in Japan, [the first appellant] said four days. When asked whether he considered staying in Japan rather than returning to China, he then said he went to Japan to close his Japanese office and dismiss staff. It was put to [the first appellant] that he had said that he had gone to Japan because he was deeply hurt. [The first appellant] then told the Tribunal because he felt hurt he didn't want to carry out any business and Japan was very expensive and if he closed down the business he didn't need to pay any fees. He advised the business in Japan was different to serviced apartment business. [The second appellant] sought to corroborate her husband's evidence about the reasons he travelled to Japan, saying he needed to close the business for financial reasons and he was also suffering mental problems. 47. I consider the applicants' evidence about [the first appellant's] experiences of past harm in China and his fragile mental state at the time he travelled to Japan in August 2009 is undermined by the fact that [the first appellant] returned to China after spending four days in Japan. Although the written claims provided by the applicant state [the first appellant] felt 'fearful and anxious' about the reporting requirements imposed upon him when he was released from the hospital and he initially told the Tribunal he travelled to Japan because he was deeply hurt, physically and mentally, this evidence is difficult to reconcile with the fact that [the first appellant] returned to China after spending only four days in Japan and his evidence that he had no concerns about returning to China so shortly after being detained. I have considered [the first appellant's] evidence that his problems appeared to have ended after his wife paid a bribe to secure his release and that his impression from the police interrogation was that the police did not have the full details about his case and that his fear that he would face persecution only manifested when he received an anonymous phone [call] in August 2012. I have also considered the applicants' written submissions that, while the Japan is a nice country it is prone to earthquakes, and they preferred to seek protection elsewhere. However, I consider it is highly improbable that a person in [the first appellant's] situation who had been arrested, detained, mistreated by the Chinese authorities in August 2009 and hospitalised under police guard and only released subject to reporting obligations would travel abroad immediately after these events but give no thought to claiming asylum and have no concerns about returning to China. It is true that the first appellant did not give evidence of having "no concerns about returning to China so shortly after being detained", but that misstatement by the Tribunal of the evidence was only one aspect of the broader, correctly recorded evidence about the fact of travelling to Japan and returning to China soon after the date of the events said to have been the reason for his apprehension of harm. That emerges from the first sentence in paragraph [45] and the account of the events which follow. The fact was the first appellant did leave China and did return to China soon after the events which he said caused him to have fear. That was why the Tribunal rejected his claims as highly improbable. 9 The error made by the Tribunal was consistent with the other findings made by the Tribunal and the evidence which he did give, and was material to only one of the reasons of the Tribunal rejecting the claims. Each of the others were independent of the Tribunal's rejection of the claims concerning August 2009. A second reason of the Tribunal for rejecting the claims by the first appellant concerned the timing of the departure from China to Australia which the Tribunal considered undermined the claims of having decided to leave China because he feared being arrested at any time. At [48] to [52] the Tribunal said: 48. I also consider the applicants' evidence that the trigger for their decision to leave China and travel to Australia in November 2012 was an anonymous phone call that was made to [the first appellant's] mobile phone on 19 August 2012 to be improbable and undermined by the timing of their departure from China. The applicants claim that the anonymous caller informed [the first appellant] that Mr Li had been arrested by the Chinese authorities and that [the first appellant] should take care of himself and destroy anything he had that was related to Mr Li. However, as I put to the applicants, although it was claimed that Li Jian was arrested in August 2012 the applicants were able to remain in China until November 2012 and then depart China travelling on valid passports issued in their own name. It was put to the applicants that, given the arrest of Li Jian occurred in August 2012, if the authorities had any adverse interest in the applicants they would have had time to interrogate [the first appellant] if he was of any adverse interest to the authorities before the applicants left Chian [sic] in November 2012. 49. When this issue was raised at the first hearing [the first appellant] said that the police did not come for him after Mr Li was arrested as it was not necessary for Mr Li to tell the authorities about [the first appellant] after he was arrested. [The first appellant] stated Mr Li was a human rights fighter. He then stated that just because it was not necessary for Mr Li to tell the police about him didn't mean the police didn't have a case against him. However, as I put to [the first appellant] he had claimed that the authorities investigated him in 2009. It was put to [the first appellant] that if the authorities were interested in taking further action against him surely they would have done so in 2009. [The first appellant] said they didn't get Mr Li at that time. However, given [the first appellant] previously told the Tribunal that Mr Li was a human rights fighter and it was not necessary for Mr Li to tell the police about [the first appellant], it was unclear to the Tribunal why the arrest of Mr Li would revive the authorities' interest in [the first appellant]. When asked what it was about the arrest of Mr Li that made him believe he would be of adverse interest to the authorities, [the first appellant] said what he had done was like a bomb --when it exploded he would be arrested and detained for sure. 50. At the second hearing I put to the applicants that if they were of adverse interest to the authorities because of the information the authorities had obtained when they arrested Mr Li in August 2012, then the authorities would have had ample opportunity to question the applicants before they left China. [The first appellant] responded by saying he couldn't remember the previous discussion with the Tribunal about this issue, but if they already had the information against him it would be quite normal to arrest him at any time. He also said he had advised his wife, to deny all knowledge and that they were prepared for the worst. [The second appellant] also gave evidence that they were prepared for the worst. 51. However, I consider the timing of the applicants' travel to Australia undermines their claims that they decided to leave China because, after receiving an anonymous phone call in August 2012, they feared being arrested at any time. As I discussed with the applicants they were in possession of passports issued in their own name, had travelled in and out of China frequently, and obtained their visas to travel to Australia on 17 September 2012. In this context, I do not consider the applicants have credibly explained why, if they believed they were in imminent danger of being apprehended by the Chinese authorities, they did not make arrangements to travel out of China immediately after obtaining visas to travel to Australia instead of remaining in China until November 2012. 52. In response to the Tribunal's concerns about the timing of their departure from China, [the first appellant] gave evidence that they did not immediately depart China because he was suffering from various health ailments and that [the second appellant] was showing signs of miscarriage. However, as I discussed with the applicants they were able to travel internally within China and ultimately departed China in November 2012. At the hearing [the first appellant] has said they travelled by train to his brother in law's place in September 2012 and, according to the applicants written testimony, in August 2012 they travelled by plane from [the first appellant's] home town to Beijing. In my view, the applicants' capacity to travel within China undermines their claims that their travel out of China was delayed because of their health issues. Further, while [the first appellant] has claimed he suffered from medical conditions at various points in the protection visa application process this evidence is not corroborated by medical evidence. While [the first appellant] has produced photographs of boxes which are said to contain Chinese medicine that he takes for 'appendicitis', these photographs do not establish that [the first appellant] was unfit to travel immediately after he was granted an Australian visa in September 2012 and nor do they establish that he suffers from appendicitis or from any of the other health ailments he claims to have suffered. To the extent the applicants have sought to suggest that the reason they did not depart China at an earlier point in time was because of health issues, I consider this evidence has been contrived in an attempt to respond the Tribunal's concerns about the timing of their travel out of China. In the passage at [52] above the Tribunal also found as contrived the claim by the first respondent of not having previously been able to leave China because of illness. The Tribunal observed in that context that his evidence was not corroborated by medical evidence and that the photographs which had been produced neither established that the first appellant was unfit to travel immediately after he was granted a visa in September 2012 nor that he suffered from appendicitis or from any other health ailment that he claimed to have suffered. 10 A third reason for the Tribunal rejecting the claims that the appellants were of any adverse interest to the Chinese authorities was that the appellants had been able to depart China on valid passports issued in their own names on 1 November 2012. At [53]-[54] the Tribunal said: 53. I consider that if [the first appellant] or, for that matter, [the second appellant], was of any adverse interest to the authorities following the arrest of Mr Li on or before 19 August 2012 (when [the first appellant] received the anonymous phone call) then the authorities had ample opportunity to questions the applicants before they departed China on 2 November 2012. In my view, the fact that the applicants were able to depart China travelling on valid passports issued in their own name on 1 November 2012 strongly indicates that they were not, at that time, of any adverse interest to the Chinese authorities for any reason and this casts further doubt on the applicants' claims that, at the time they left China, [the first appellant] was under official investigation following the arrest of Li Jian in August 2012. This is because, as I put to the applicants, the country information available to the Tribunal indicates that being able to depart China on travel documents in one's own name, passing through the security checks at the airport, indicates that the person is not of adverse interest to the Chinese authorities. This is because the country that it is likely that people who were being investigated but for whom a formal arrest warrant was yet to be issued would be on alert lists which are connected to Chinese identity cards as well as to passports and operated at railway stations as well as airports and border crossings. While I have considered [the first appellant's] general assertion that many people have left China and successfully sought protection abroad, the Tribunal can only consider the facts of this particular case. 54. As discussed above, I consider it highly improbable that, if Mr Li was arrested by the authorities in August 2012 and [the first appellant] was under investigation by the authorities, [the first appellant] would have been able to remain in China until November 2012 without being questioned or otherwise approached by the Chinese authorities. Neither [the first appellant] nor [the second appellant] have claimed to have experienced any problem passing through security at the Chinese identity or travelling internally within China either by plane in August 2012 (which the applicants have said they did in written submissions) or by train (which is how [the first appellant] suggested they travelled to the home of his mother in law in September 2012). The applicants' evidence does not indicate they experienced any problems travelling within China in 2012 or passing through airport security when they travelled from China to Australia. Having regard to the country information set out above and the applicants' evidence, I consider the fact that [the first appellant], [the second appellant] and their child were able as able to pass through airport security on valid passports issued in their own name strongly suggests that he was not, at that time, of adverse interest to the Chinese authorities for any reason In the paragraph which followed, the Tribunal observed that the claims by the first respondent of having been on a blacklist and of being warranted and under investigation were "vague, speculative". At [56] the Tribunal also noted that the first appellant had never been the subject of an arrest warrant, summons or any attempt to locate him before his departure. There was, finally, no documentation corroborating any of the claims which the first appellant had made of being of adverse interest or attention of the Chinese authorities. 11 Accordingly, the appeal will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 5 December 2017 SCHEDULE OF PARTIES NSD 1291 of 2017 Appellants Fourth Appellant: SZVSH