Abp16 v Minister for Immigration
[2017] FCCA 420
•16 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABP16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 420 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – protection visa application – relevance of delay in lodging protection visa application – no evidence of Tribunal bias – no jurisdictional error or procedural unfairness – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 91R |
| Cases cited: AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 BAX15 v Minister of Immigrationand Border Protection [2016] FCA 491 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 |
| Applicant: | ABP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 39 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 28 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms A Wong |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 11 January 2016 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 39 of 2016
| ABP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of China aged 51 years, having been born on 27 August 1965.
By Application filed in this Court on 11 January 2016 he seeks to quash and have redetermined according to law a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 18 December 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 2 June 2014 refusing to grant to the Applicant a Protection (Class XA) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).
Background
The Applicant applied for a Protection visa on 6 January 2014. He had arrived in Australia on 2 December 2013 on a Class FA Subclass 600 Tourist visa (Tourist visa) issued out of the Australian Visa Application Centre in Shanghai, which he applied for on or about 3 November 2013 and was granted on 15 November 2013. The Tourist visa expired 3 months from the date of his arrival.
Claims for Protection
The Applicant’s claims for protection were contained in the Statement (Statement) attached to his Protection visa application. He claimed in his Statement to come from Xichang Village (comprised of some 6,000 people) in Xichang Town, Hai’an County, Nantong City in China. He claimed to have finished middle school and was subsequently employed as a building worker and later promoted to technician.
He further claimed that members of the Zhang family had held for many years all the important positions in Xichang Village such as CCP (Chinese Communist Party) secretary, village chief and village militia team leader. Xichang Village was under a “clan-type rule, with rampant corruption and bribery-taking”. The Zhang family were consequently unpopular.
On 5 August 2012 the village chief, a member of the Zhang family, had died and there was therefore a necessity for an election by the villagers for a new chief. At that time the position of the village chief had been held by a member of the Zhang family for 71 years. The Applicant was approached by other villagers, including several senior villagers, to stand in the election for the new village chief against another member of the Zhang family, the nephew of the deceased chief.
The Applicant claimed that he became a candidate for the position of village chief but on 18 August 2012, just one week before the election, he was assaulted by supporters of the Zhang family and warned off standing in the election. On 21 August 2012 he left for Shanghai, which was some 450km away from Xichang Village, and he hid there with his brother-in-law. On 3 November 2013, some 14 months later, he applied for the Tourist visa.
Grounds for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7]:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant took part in a Protection visa interview with the Delegate on 26 May 2014. In the result, the Delegate did not find to be credible the Applicant’s claims that he and his family would be forever at threat if he were again to be seen in China.
The Delegate found a variance between the Applicant’s claims in his Statement and his oral evidence at the interview. The Delegate found implausible that the Applicant would be approached by other villagers, including village elders, to stand for village chief when he had never held any previous public office or otherwise been politically involved and had only a middle school education.
Further, the Delegate in his Decision Record pointed out his concerns that the Applicant had not provided any evidence, including documentary, electronic or photographic evidence in support of his claims.
Overall the Delegate was of the view that the Applicant was not a credible witness and that his claims for protection were fabricated. He was not satisfied that the Applicant was of any adverse interest to the authorities in China for either Refugee Convention related reasons or under complementary protection criterion reasons and he accordingly refused to grant the Applicant a Protection visa.
Decision of Tribunal
On 1 July 2014 the Applicant applied to the Tribunal for review of the Delegate’s decision. He appeared before it on 3 December 2014 to give evidence and present arguments.
On 18 December 2015 the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.
In its Decision Record, the Tribunal stated that the two primary issues for it in deciding whether to affirm the Delegate’s decision were as follows:
a)Whether the claims of the Applicant were credible; and
b)If the claims of the Applicant were credible, whether he was entitled to a Protection visa under s.36 of the Act by virtue of those claims.
In the result the Tribunal did not find the Applicant to be a credible witness and it was not satisfied that he had told the truth in relation to fundamental aspects of his claims.
Overall the Tribunal did not find the Applicant’s evidence to be plausible, persuasive or consistent. It concluded that the events asserted by the Applicant did not occur and that he had falsified his claims for the purpose of his Protection visa application. It rejected his claims in their entirety.
Accordingly the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Act and it affirmed the decision of the Delegate not to grant to him a Protection visa.
In its Decision Record, the Tribunal gave extensive and comprehensive reasons for rejecting the Applicant’s claims. Those reasons appear to be legally reasonable and do not constitute a blanket, reflex or exaggerated adverse credit finding but rather reflect a proper examination of the Applicant’s claims: AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 at 145 [11].
First, the Tribunal was concerned by the total lack of any documentary evidence to support the Applicant’s claims to have been a candidate for election as village chief and outlined its reasoning regarding this concern at [31]-[35] of its Decision Record. The Tribunal also noted its concern at the Applicant’s failure to respond to issues identified in the Delegate’s decision refusing his Protection visa application.
Second, the Tribunal was concerned by the Applicant’s lack of knowledge of basic provisions in relation to the election of village representatives and considered that his evidence in that regard was inconsistent with country information which the Tribunal identified in its Decision Record and to which it had regard. This lack of knowledge led the Tribunal to doubt whether the Applicant was ever a potential candidate or involved in any election for the position of village chief after the death of the former village chief. The reasoning in relation to this concern of the Tribunal appears in [36]-[40] of its Decision Record.
Third, the Tribunal had concerns about inconsistencies in the evidence of the Applicant in connection with a number of matters, including:
a)His claims concerning his previous employment experience (see [42] of the Decision Record);
b)His claims concerning how many villagers approached him to stand as village chief (see [43] of the Decision Record); and
c)The inconsistencies between the Applicant’s claims in his Statement and in his oral evidence concerning the events of 18 August 2012. In his Statement, he claimed that after he had been taken to an unknown place, he had then been beaten by Zhang family supporters, after they had verbally warned him off standing for election as village chief. However, his evidence at the interview with the Delegate was that he had been dragged away a few kilometres and had been beaten before being verbally warned off from standing as village chief (see [44]-[45] of the Decision Record).
The Tribunal was also concerned about inconsistent evidence regarding his injuries claimed as arising out of the alleged beating by Zhang family supporters on 18 August 2012. He had claimed in his Statement that his nose had started bleeding, but when asked about his injuries at the Tribunal hearing, the Applicant told the Tribunal that his leg was fractured and that he had to go to hospital to have an X-ray and to have his leg plastered (see [46] of the Decision Record).
Fourth, the Tribunal was concerned about the plausibility of whether the Applicant himself or any other villagers, including his opponents in the Zhang family, would ever have considered why he would be a successful candidate for village chief and likely to be a successful candidate in the election for that role, having regard to his seeming overall lack of qualifications for that position (see [48] of the Decision Record).
The Tribunal was also concerned that country information indicated that there was election campaigning even for local village elections, whereas the Applicant asserted that there were no campaigns or electioneering for a “small town” of around 6,000 people. The Tribunal stated at [49]:-
Mr [APB16]’s apparent lack of commitment to a campaign in the face of country information which indicates that even local village elections are the subject of campaigns raises doubts for the Tribunal about whether [APB16] is being truthful in relation to his claimed candidacy for the Xichang village elections.
Fifth, the Tribunal was concerned with why it would be plausible that the Zhang family would still pursue the Applicant as a potential threat after he had withdrawn as a candidate for the election of village chief and was saying that he was not interested in politics anymore and would not again stand as a candidate for election to any position in Xichang Village (see [50]-[52] of the Decision Record).
Sixth, the Tribunal was concerned with the Applicant’s significant delay in applying for the Tourist visa under which he left China. It noted at [53] of its Decision Record that he remained in Shanghai for 15 months before applying for the Tourist visa which led to his arrival in Australia. The Tribunal found that the Applicant’s delay in leaving China raised serious doubt about the truthfulness of his claims.
It was open to the Tribunal to regard his delay as a relevant consideration. In BAX15 v Minister of Immigrationand Border Protection [2016] FCA 491 Perry J at [41]-[43] stated the principles concerning the relevance of delay in lodging an application for a protection visa as follows:
[41]In my view, the appellant’s delay in applying for a visa is not an irrelevant consideration. Rather, in line with the principles identified in the joint judgment in Yusuf, the significance attributed to that delay constitutes a part of the Tribunal’s process of making a particular finding of fact upon which the Tribunal has acted, namely, in reaching a view as to whether it was satisfied that the appellant has a subjective fear of persecution and otherwise in assessing his credibility.
[42]Nor do I consider that the Tribunal in having regard to this delay in reaching a view on these matters was acting unreasonably or irrationally. For example in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349, Heerey J said with respect to a similar line of reasoning:
...the applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution. It is a rational consideration open on the material.
[43]While the delay in making the protection visa application in this case was shorter than that in Selvadurai, namely, two months as opposed to 20 months, I accept the Minister’s submission that in this case it was not unreasonable or irrational for the Tribunal to have regard to the appellant’s delay in the manner explained. In so saying, I acknowledge that the situation might be different in other cases depending upon the circumstances if, for example, the delay were for a very brief period of time. Further, the Tribunal did not treat the existence of the delay as the end of its enquiry but considered the genuineness of the explanation put forward by the appellant: Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 (Wilcox, Einfeld and Tamberlin JJ). The fact that the Tribunal did not consider that explanation to be genuine is a matter that was open to the Tribunal on the evidence for the reasons that it gave, as the primary judge held. There is no merit in my view in ground two of the notice of appeal.
Ultimately, the Tribunal concluded at [55] of its Decision Record as follows:
[55]Against this background, the Tribunal accepts the possibility that the 2012 Village election in Xichang may not have been conducted in accordance with appropriate procedures. However, the Tribunal does not accept that [APB16] was approached by other villagers to be involved in a campaign to be elected as Village Chief. Based on the evidence outlined above including [APB16]’s incorrect knowledge about the frequency of elections, it is clear [APB16] has no knowledge about the election processes. Having considered [APB16]’s claims individually and cumulatively, for the reasons give above, the Tribunal is not satisfied that there is a real chance that [APB16] would be subject to any harm if returned to China. Of particular relevance is the evidence provided by [APB16] that his family continues to remain in the family home.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in the Application are as follows:
1.The most important position of our village chief had been held by the Zhang family for more than 70 years. The controlled the economical power, so most village income was all used on lavish entertainment or remains in the pockets of the corrupt village cadres.
2.It was the universal wish of our villagers that we could be rid of the Zhang family in their roles as village Chief and other village cadres.
3.On 5th Aug. 2012, our village chief passed away. Every villager hoped that a new chief would be elected other than a member of the Zhang family. The representatives of our village visited my home and said to me: “You are honest, upright, fair and committed person. Our villagers wish you would courageously stand up to run for the village chief. At first, I feared to be retaliated, at last I couldn’t refuse their persuasion again and again. I made my decision to run for the position for which I was suffered badly persecuted. I was forced to escape to Australia for protection. Unfortunately, my unhappy experience couldn’t obtain the Tribunal member’s sympathy, refusing my application for protection visa.
4.The Tribunal member failed to take my claims into account according to S91R of the Migration Act 1958 because of the Tribunal member’s bias against me.
Consideration
Grounds 1 to 3
Ms Wong, who appeared for the First Respondent at the hearing in this Court, submitted that Grounds 1 to 3 invite a factual merits review of the Tribunal’s decision which is not available in this Court. I accept that submission as correct. These Grounds disclose no jurisdictional error and must be rejected.
Ground 4
Section 91R of the Act
First, s.91R of the Act was relevant to the issues before the Tribunal. That section was repealed as and from 18 April 2015, but the repeal did not affect the Applicant’s application for a protection visa, because it was lodged on 6 January 2014, namely before 18 April 2015: SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [21] per Bromberg J. Section 91R was expressly cited in [10] of the Decision Record of the Tribunal as being relevant to its consideration of the Applicant’s application for review of the Delegate’s decision. I can discern no legal error in the Tribunal’s statement of the relevance of s.91R for the purposes of the application for review under decision.
Actual Bias
There is nothing at all to suggest that the Tribunal had any bias against the Applicant. I infer that the form of bias alleged by the Applicant is actual bias in the form of prejudgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal stated in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:
97.The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Michael Wilson & Partners) at 437-438 [33].
Apprehended Bias
For completeness, I note that the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. It is an objective test not requiring an assessment of the state of mind of the judge: Michael Wilson & Partners at 437-438 [32]-[33].
Consideration of Claims of Bias
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.
First, the Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
Second, the Applicant has not tendered a transcript of the Tribunal hearing in support of his complaint that the Tribunal was biased or had prejudged his Protection visa application.
Conclusion
The Applicant has failed to establish any jurisdictional error or breach of procedural fairness or that he has suffered from any practical injustice and accordingly the Application must be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 16 March 2017
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