Abv16 (BY His Litigation Representative Ane16) v Minister for Home Affairs
[2020] FCCA 2298
•25 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABV16 (BY HIS LITIGATION REPRESENTATIVE ANE16) v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2298 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Home Affairs not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – Applicant a minor and claims to protection based largely on claims made by his parents in their own Protection visa application which had been previously unsuccessful – Applicant claimed that Tribunal focussed too heavily on the delay of the parents in lodging their own Protection visa application, that the decision of the Tribunal was affected by bias and that the Tribunal failed to take into account relevant country information – legally reasonable for the Tribunal to take into account the delay in the way that it did – claim of bias not made out – Tribunal did take into account the country information complained of and in fact had itself alerted the Applicant to its existence – jurisdictional error not made out – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2016] FCCA 1078 |
| Applicant: | ABV16 (BY HIS LITIGATION REPRESENTATIVE ANE16) |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3359 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2020 |
REPRESENTATION
| ANE16 appeared in person as Litigation Representative on behalf of the Applicant. |
| Counsel for the First Respondent: | Ms K. Hooper of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 3 December 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3359 of 2018
| ABV16 (BY HIS LITIGATION REPRESENTATIVE ANE16) |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of China (China or PRC) aged seven years having been born in Australia in 2012 to Chinese citizens. The Applicant appears through his mother (ANE16) as his litigation representative.
By Application filed in this Court on 3 December 2018 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 November 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 1 September 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth).
Background
ANE16, who is now aged 31, arrived in Australia in October 2007 as the holder of a Student visa, which expired in March 2010. She had visited China in December 2008, returning to Australia in January 2009. She did no further study upon her return, apparently for lack of funds. After the expiration of her Student visa she remained in Australia unlawfully until March 2012, when she was granted the first of successive Bridging visas.
The father of the Applicant (the father) is now aged 31 years and was from July 2011 until July 2016 the de facto partner of ANE16, having arrived in Australia in June 2007 as the holder of a Student visa that expired in March 2010. He too remained in Australia without a visa from March 2010 until 23 March 2012 when he, together with ANE16, applied for a Protection visa and was granted a series of associated Bridging visas. The application by ANE16 and the father for a Protection visa was refused by a Delegate of the Minister on 28 August 2012, which refusal was affirmed by the Refugee Review Tribunal (RRT) on 17 December 2013, and they did not seek judicial review of that refusal. On 14 January 2014 ANE16 lodged an application for a Protection visa on behalf of the Applicant, with the assistance of their registered migration agent from Priscilla International Co. Pty Ltd (migration agent).
ANE16 and the father married on 9 July 2016.
Claims to Protection
The Applicant’s claims to protection were made by ANE16 on his behalf in her Statutory Declaration sworn on 14 January 2014, as follows:
a)the Applicant was born to Chinese parents out of wedlock in Australia. Under family planning laws in China, the Applicant’s parents will be forced to pay a ‘social compensation fee’ to the Chinese authorities to have the Applicant registered. The Chinese authorities are corrupt and it is likely they may extort the Applicant’s parents because there is no way to determine how much the social compensation fee will be until they return to China. The Applicant’s parents are financially unstable and are unable to be able to pay the social compensation fee, regardless of price;
b)the Applicant will become what is known as a ‘black child’ as he is unregistered with Chinese authorities and as a result “must have no way to survive; and his basic human rights must be threatened and damaged constantly”;
c)ANE16 is a devout Catholic of the Roman Catholic Church and she attended an underground church on 25 December 2005 in China, where she participated in an “underground church bible study group”;
d)ANE16 was baptized on 20 May 2006 and in September 2006 she founded the ‘Longhua Meeting Group’ with fellow members of the bible study group, meetings of which she attended regularly until she left China in 2007;
e)ANE16 has been attending a church in Flemington, NSW since October 2007;
f)ANE16 returned to China in 2008 and attended secret meetings with her church friends. She utilised the funds given to her by her mother for tuition to manufacture Roman Catholic teaching materials for the bible study group of the underground church. She was told that on 17 January 2009 some of the members of the bible study group were arrested by Chinese authorities. She then departed China on 19 January 2009;
g)ANE16 believes she is considered by Chinese authorities to have played an active role in developing an illegal church and as a result her parents and siblings were interrogated by the Chinese Public Security Bureau; and
h)the Applicant will be implicated in ANE16’s Roman Catholicism and role in the underground church in China and will become a victim of persecution as a result.
The Applicant’s claims evolved and amplified over the time of the processing of his Protection visa application and had become, as accurately recorded by the Tribunal at [7] of its Decision Record, as follows:
[7]The relative importance of these claims has varied over time, in response to changes in the parents’ circumstances (such as their marriage in Australia) and country information in China, and they overlap to some extent. Following is the Tribunal’s summary of the applicant’s claims, which overlap to some extent, in approximate order of current priority:
§Roman Catholic: His parents are practising Roman Catholics who do not accept the officially approved Catholic church; the applicant has been baptised as a Catholic. They claim that he will be unable to be brought up and practise as a Catholic in China, without the risk of persecution or significant harm.
§‘Black child’: The PRC authorities will regard the applicant as a ‘black child’, and therefore denied normal access to health, education and other basic services, for one or more of the following reasons.
– He was born out of wedlock, in violation of China’s family planning laws (although his parents have since married), and they will be unable to afford the social compensation fee that must be paid.
– Corrupt officials may set the fee at the upper end, or arbitrarily demand more money (extortion), for instance because the family has lived overseas and is suspected of being wealthy, making household registration even less affordable.
– At hearing, the mother suggested that, even if the applicant is not affected by family planning laws (now that the parents have married), they might still treat him as a black child because of her adverse profile (due to her illegal activities and proselytising in Jiangxi province), and deny him a hukou.
§Mother’s adverse profile: His mother claims that her adverse profile, and her intention to continue practising Catholicism, put her (and perhaps also the father) at added risk of detention and punishment, thereby leaving the applicant without guardians.
§Extortion: In addition to the risk that local officials will charge the family an exorbitant social compensation fee, because of their past residence overseas and the presumption that they are wealthy, they claim that there is a more general risk of extortion.
§PRC authorities’ knowledge of protection visa application: The mother claims that officials at the Chinese Consulate-General in Sydney were hostile when the parents approached them to obtain passports or travel documents. Officials advised the mother that they are aware of the family’s protection visa applications, and intimidated her. She implied that this signals the PRC authorities’ adverse interest in her, and their likely intentions to harm her (and the applicant) if they return to China.
I note that Ms Hooper of Counsel, who appeared for the Minister at the hearing, agreed with my view that the Tribunal’s summary of the Applicant’s claims at [7] contained a reasonably full and accurate statement of the claims of the Applicant as they were finally put on his behalf to the Tribunal, based on the considerable body of material submitted by the migration agent between January 2014 and January 2018 and at the Tribunal hearing itself.
Relevant Law and Criteria Applicable to the Grant of a Protection visa
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant, with ANE16 speaking on his behalf, attended an interview with the Delegate on 12 May 2014.
In his Decision Record the Delegate summarised the claims made in ANE16’s Statutory Declaration. Nevertheless, the Delegate found that he was not satisfied that the Applicant’s parents would refrain from registering the Applicant with the Chinese authorities or that they would face a barrier to paying the social compensation fee by increments. He also found that the Applicant would not face a real chance of suffering serious harm if he returned to China and practised Catholicism in the foreseeable future and that he would not suffer significant harm by reason of being harassed and detained by the police if he returned to China.
In the result the Delegate was not satisfied that Australia owed protection obligations to the Applicant under the Refugees Convention criterion or the complementary protection criterion. Accordingly, the Delegate refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the RRT on 12 September 2014 and gave a copy of the Decision Record of the Delegate to it at the same time.
On 17 December 2015 the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa (first Tribunal Decision). The Applicant applied for judicial review of the first Tribunal Decision in this Court, which was dismissed by Judge Street on 6 May 2016 in judgment bearing medium neutral citation [2016] FCCA 1078. The Applicant then appealed that judgment in the Federal Court of Australia, which appeal was allowed by Justice Bromberg on 2 March 2017 in judgment bearing medium neutral citation [2017] FCA 184, which quashed the first Tribunal Decision and remitted the matter back to the Tribunal for reconsideration in accordance with law.
The Applicant attended a hearing before the Tribunal differently constituted on 30 August 2017 to give evidence and present arguments with the assistance of ANE16 and the Applicant’s migration agent (second Tribunal hearing).
Subsequent to the second Tribunal hearing, the Tribunal by letter emailed on 2 January 2018 invited the Applicant to respond to or comment on a new country information report on China, which had been published by the Department of Foreign Affairs and Trade on 21 December 2017 (DFAT Report) but not yet put on the DFAT website. The Tribunal provided excerpts (relevant to the Applicant’s claims to protection) of the DFAT report to the Applicant and requested that any submissions be forwarded by 9 January 2018 (invitation to comment letter).
I note that the DFAT Report at [3.20] referred to the Chinese Government’s Regulations on Religious Affairs which had come into effect in 2005 and at [3.23] that the State Council of the Chinese Government had in September 2017 approved revisions to the 2005 Regulations on Religious Affairs, which had come into force in February 2018, devolving substantial powers and responsibility to local authorities to prevent illegal religious behaviour and imposing large fines for organising illegal religious events and fundraising.
The Applicant responded to the invitation to comment letter with a Statutory Declaration sworn by ANE16 on 8 January 2018, which commented upon the DFAT Report and at [3] asserted that “President Xi’s approval of the revised ‘Regulations on Religious Affairs’ has revealed a bleak future for religious followers…” (response to invitation to comment).
At [1] – [2] and [8] – [18] of its Decision Record the Tribunal recorded the factual and procedural history of the application for review before it.
Then from [19] – [23] of its Decision Record the Tribunal particularised and recorded the large body of evidence before it for the purposes of the review.
Having regard to the confined nature of the Grounds relied upon by the Applicant in seeking judicial review of the decision of the Tribunal, which essentially relate to allegations of actual or apprehended bias, it is sufficient for present purposes to summarise the findings and reasons of the Tribunal as follows. Whilst the Tribunal accepted that the Applicant’s parents and the Applicant were nationals of China, it otherwise had significant concerns with the veracity of the claims to protection and evidence presented by ANE16 on behalf of the Applicant. At [27] of its Decision Record the Tribunal recorded as follows:
[27]The Tribunal has significant concerns about the veracity of the claims and evidence presented by the applicant’s mother. It found much of her claims and evidence to be exaggerated, misconstrued and contrived to bolster the applicant’s protection claims, particularly in relation to her claimed dealings with the Department and the PRC Consulate-General, and also her claims that only the style of Catholic practice found at St Dominic’s is acceptable to her. It takes into account that her assertive, occasionally indignant manner may have contributed to such an impression. However, even allowing for this, it has broad concerns about the credibility of her claims.
At [53] of its Decision Record the Tribunal found that ANE16’s account of her dealings with the PRC Consulate officials “was contrived in order to bolster the applicant’s protection claims (and to potentially raise new issues in relation to the parents’ now-finalised matter), and to frustrate Australian officials’ efforts to ensure that they hold current PRC documentation.”
At [72] of its Decision Record the Tribunal found that the Applicant would not be denied the opportunity to be raised as a Catholic and there was no real chance of him being persecuted as a result of any PRC Government restrictions on religious practice.
At [77] of its Decision Record the Tribunal found that there was no real chance of the Applicant being denied household registration in China and being considered a ‘black child’ and denied formal status and access to healthcare, education and similar benefits.
At [79] of its Decision Record the Tribunal recorded that it was not satisfied that the Applicant faced a real chance of adverse treatment as a result of his mother’s adverse profile with PRC officials and at [80] that it was not satisfied that there was a real chance of Chinese officials extorting the Applicant’s parents in such a way that it would result in the Applicant suffering serious harm.
At [83] of its Decision Record the Tribunal found that there was no real chance of PRC officials subjecting the Applicant to serious harm as a result of him having sought protection in Australia.
In the result, at [89] – [92] of its Decision Record the Tribunal concluded that the Applicant did not satisfy the Refugees Convention criterion or the complementary protection criterion. Accordingly the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Decision of Tribunal in this Court
The Applicant relied upon the following verbatim Grounds:
1. I believe the Tribunal has shown bias in their assessment of some of the evidences in my case. Consequently, the Tribunal’s decision is unfair as the decision was made based on their biased assessment of the evidences present in my case.
2. I believe the Tribunal, prior to assessing the evidences present in my case, has predetermined the falsity of my claims and continues to issue judgment based on the predetermination of my claims being falsified.
3. I am convinced of this, especially with regards to the Tribunal’s frequent emphasis of the ‘delay’ with which I lodged my own protection visa application. The Tribunal indicates the delay of my own protection visa application being the reason, or part of the reason, for undermining the veracity of further claims I have made, for instance, of being a genuine practicing Catholic. I disagree that the Tribunal should place sufficient weighting on the delay of my visa application when issuing judgement onto the contents of the facts and evidences in the case itself. The delay of an application is mostly irrelevant to the contents in the application and should not determine the credibility of the claims made in the application. Although not specifically mentioned, I find it reasonable to infer, based on the Tribunal’s decision, that there would be significant change in the Tribunal’s attitude towards my claims had I lodged the application earlier. Using the time of submission as a metric for the credibility of my claims is ridiculously unfair and is convincing indication that the Tribunal already made up their mind about my case before even looking at it.
4. I believe the Tribunal’s bias has influenced their heavy undermining of the mistreatment my husband and I received during the exchanges with the Chinese Consular General in Sydney (CG). With regards to this matter, the Tribunal repeatedly emphasizes the extraordinariness of the CG’s attitude towards my family and continually references the absence of similar case (to their knowledge) as the basis of suspecting the credibility behind my claims of being threatened and mistreated. I believe it is completely unfair for the Tribunal to make judgements on this matter based on absence of information. The Tribunal even admits having very little communication with the Chinese Consular General and further admits having significant difficulties to officially verify my claims with the CG themselves. Despite this, the Tribunal’s efforts, it seems to me the Tribunal has made their decision based on, or partly based on, their own assumptions of the Chinese Consular General and their assumptions of my character. It is very worrying to me that the Tribunal is comfortable with making a decision based on little verified information and mostly their assumptions because I imagine similar thought processes were applied in assessing other areas.
5. The Tribunal’s bias in their judgement has caused my family to experience a great deal of stress and anxiety. Whilst it may be convenient for the Tribunal to issue judgements based on their assumptions, ultimately my family and I are the victims who will take the consequences. I request the Tribunal to review the case once with an open mind.
(emphasis added)
I note that in [1] of ANE16’s Written Submissions dated 7 November 2019 and seemingly at the hearing, complaint was made that the Tribunal failed to take into account the coming into force and effect in China on 1 February 2018 of the amendments or revisions to the 2005 Regulations on Religious Affairs. I will take this as a further separate Ground and formulate it as follows:
6.In arriving at its decision the Tribunal failed to take into account and consider the coming into force and effect on 1 February 2018 of the amendments or revisions to the 2005 Regulations on Religious Affairs.
Consideration
Grounds 1, 2, 4 and 5
Ground 1 appears to assert apprehension of bias; Ground 2 appears to assert actual bias by way of prejudgment and I will take Grounds 4 and 5 as asserting both actual bias and apprehension of bias.
I first note that the Applicant has not tendered a transcript of the second Tribunal hearing, notwithstanding that on the first return date of the Application, when I set the matter down for hearing and made directions to get the matter ready for hearing, I advised ANE16 as follows:
HIS HONOUR: The final thing I want to point out to her is that basically her application at the moment alleges bias of the tribunal. She may well need to provide a transcript of the tribunal hearing if she wants to make out that allegation and these orders put the onus of getting any transcript on her. Does she understand that?
THE INTERPRETER: Yes, your Honour.
Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 – 92 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 – 358 [48] per Hayne, Kiefel and Bell JJ.
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 [72] as follows:
[72]… 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 said 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 prejudgment requires an assessment of the state of mind of the judge or decision-maker in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437 – 438 [33].
On the other hand, 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 – 345. It is an objective test not requiring an assessment of the state of mind of the judge or decision-maker, as is necessary in an inquiry about actual bias: Michael Wilson & Partners at 437 [32].
In my opinion there is no basis for any claim by the Applicant that he has suffered from any actual bias of the Tribunal, nor could there be any reasonable apprehension of bias in connection with the decision of the Tribunal.
The Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment 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 (SCAA) at [38]. Rather, it appears to me to be a reasoned, detailed, comprehensive and meaningful consideration of the claims of the Applicant. As I have already noted, the Applicant has not tendered a transcript of the second Tribunal hearing in support of these claims of bias.
In SCAA at [38] von Doussa J had said as follows:
[38]In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing (Sun Zhan Qui (1997) 81 FCR 71 at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
In my view the reality is that the substance of these Grounds alleging bias seeks to argue with the merits of the decision of the Tribunal, which is not available in this Court. Adverse findings and decisions of the Tribunal cannot of themselves establish any form of bias, as Lee J in the Federal Court of Australia has recently pointed out in DSL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1141 at [18] in the following terms:
[18]Thirdly, an allegation of bias (actual or apprehended) is one which must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (at 531 [69] per Gleeson CJ and Gummow J and at 546 [127] per Kirby J). Indeed, an inference of bias or prejudgment should not be drawn from the mere fact of adverse findings and will rarely be made out by mere reference to the published reasons for a decision: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 (at [38] per von Doussa J). The appellant has not provided any particulars as to an allegation of bias, nor filed any evidence to support such allegation. In these circumstances, any such assertion is incapable of establishing jurisdictional error in the Tribunal’s decision.
These Grounds fail to establish that the decision of the Tribunal is affected by any form of bias and are not made out.
Ground 3
I take this Ground as contending that in assessing the Applicant’s claims to protection it was legally unreasonable for the Tribunal to take into account the question of any delay by ANE16 and the father in having made their joint application for a Protection visa in March 2012, although having arrived respectively in Australia in October 2007 and June 2007 (see [3] – [4] above).
In BAX15 v Minister for Immigration & Border Protection [2016] FCA 491 Perry J in the Federal Court of Australia reviewed the principles concerning the relevance of a delay in lodging an application for a Protection visa. It had been submitted by the applicant in the case before her Honour that the factor of delay was an irrelevant consideration, but her Honour stated 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 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 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] FCA 1105; (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.
In my view this Ground fails because it was not legally unreasonable and not lacking an intelligible justification for the Tribunal to consider and have regard to the past conduct of the Applicant’s parents in assessing the Applicant’s claims to protection. The Applicant’s claims to protection were made by his parents, as he was not of an age to make any claims or submissions on his own behalf. In her Statutory Declaration dated 14 January 2014 (see [6] above) ANE16 herself had “In support of my son’s application for a Protection visa…” focussed on and re-agitated the original claims of the father and herself to protection and at [21] stated:
[21]However, my son must be implicated by my case and he must become a victim of persecution if he were to move to China.
This interconnectedness of claims was recognised by the Tribunal at [6], [14] and [33] of its Decision Record in the following terms:
[6] The applicant’s parents presented claims on his behalf. The original written statement of claims focuses on the applicant’s future status in China as an unregistered (‘black’) child, and restates the mother’s claims to fear persecution as a member of an underground Roman Catholic church, to which she adds: ‘My son must be implicated [in] my case and he must become a victim of persecution if he were to move to China.’ In a statement dated 23 August 2017, the mother confirmed that the applicant relies on all the claims previously presented.
[14]The applicant relies in large part on his parents’ claims for protection. They applied for protection visas on 23 March 2012, and the delegate refused to grant the visas on 28 August 2012. They applied to the (then) Refugee Review Tribunal for review of the decision, and on 17 December 2013, the Tribunal affirmed the decision not to grant them protection visas. The parents did not seek judicial review of the Tribunal’s decision. As noted above, on 14 January 2014, the applicant’s parents then lodged a protection visa application on his behalf, which is the subject of this review.
[33]The applicant’s claims rely to a large extent on those of his mother, who claims to have been introduced to Catholicism by classmates in Fujian, to have been baptised in May 2006, and to have practiced ‘secretly’ from that time. She also claims that when she returned to China for a visit in late 2008, her religious activities in Jiangxi province brought her to the adverse attention of PRC security officials in Jiangxi and also Fujian.
At [30] – [31] and [35] the Tribunal expressly referred to the issue of delay in the following terms:
[30]The parents’ delayed lodgement of protection visa applications - years after arriving in Australia, studying and then remaining in the country unlawfully – remains of concern to the Tribunal, in assessing their credibility and the applicant’s prospects if he were to go to China. This was subject to discussion at successive Tribunal hearings, and in the mother’s submissions. She voiced her exasperation that this had proved such an obstacle in the parents’ case, and in the current application. She claimed above all that the parents did not want to involve or rely on God to secure permanent residency in Australia, and did so only as a last resort. During the course of this review, she also gave other reasons. First, she and the father were young at the time, and hesitant to make such a momentous decision as seeking protection or permanent residency. Second, having been brought up in China, they felt that seeking protection abroad was a kind of betrayal of the motherland. Third, she commented that the PRC authorities are constantly harassing her family and monitoring them (even though she also claimed that their whereabouts are unknown); she implied that she was hesitant to do anything to aggravate the situation. Finally, she also noted that many people from her church in Sydney had sought protection visas in Australia, mostly without success. Although she did not spell out the relevance of this, she implied that the parents knew that lodging a protection visa application was unlikely to produce a quick, favourable outcome (that is, permanent residency in Australia), and that it therefore made sense from their perspective to wait until that had to do so.
[31]The Tribunal considers these factors, even cumulatively, to be unpersuasive. The mother’s evidence that she returned to Australia in early 2009, without funds for her study, but intending to live and work for as long as possible, reinforces the Tribunal’s concern that the parents’ focus has been on securing permanent residency here, and not on seeking protection from any feared harm in China (on religious or any other grounds).
[35] As noted above, the significant delay between the mother’s last arrival in Australia and the lodgement by the parents of their protection visa application s reinforces the Tribunal’s doubts.
At no point of its Decision Record did the Tribunal illegitimately regard the issue of the parents’ delay in applying for a Protection visa as decisive, determinative, conclusive or as ending the enquiry as to whether the Applicant should be granted a Protection visa, but rather considered delay as one of the factors going to the genuineness of the claims to protection put forward on behalf of the Applicant. In doing so the Tribunal did not commit jurisdictional error.
Insofar as this Ground may also be taken as invoking a merits review of the Tribunal’s decision, it also must fail.
Ground 6
As recited at [16] – [18] above, it was the Tribunal which after the second Tribunal hearing drew the Applicant’s attention to the DFAT Report and the approved revisions by the State Council of the PRC in September 2017 to the 2005 Regulations on Religious Affairs, and to which ANE16 gave her response to invitation to comment.
Then in its Decision Record the Tribunal at [68] – [71] specifically considered and took into account the new revisions of 2017 and the response to invitation to comment.
In other words, the Tribunal in arriving at its decision did take into account and meaningfully consider the coming into force and effect on 1 February 2018 of the amendments or revisions to the 2005 Regulations on Religious Affairs, and this Ground also fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 August 2020
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