AGL15 v Minister for Immigration
[2016] FCCA 3254
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3254 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal biased or decision unreasonable – application dismissed. |
| Legislation: Federal Circuit Court Act 1999 (Cth), s.17A Migration Act 1958 (Cth), ss.36, 65, 424AA, 476 Federal Circuit Court Rules 2001 (Cth), r.13.03 |
| Cases cited: AGL15 & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 1063 |
| First Applicant: | AGL15 |
| Second Applicant: | AGM15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 791 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 15 November 2016 30 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Direct Solicitors |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 791 of 2015
| AGL15 |
First Applicant
| AGM15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 4 March 2015. The Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicants protection visas.
The First and Second Applicants are citizens of China and husband and wife. They travelled to Australia on visitor visas. They last arrived in May 2013 and lodged an application for protection visas in June 2013 with their daughter. The wife and daughter sought to be included in the application as members of the First Applicant’s family unit.
The application to this court was brought on behalf of the First and Second Applicants only. Future references to the Applicant are, for convenience, references to the First Applicant.
The Applicant set out written claims in connection with his protection visa application. He provided documentation to the Department in support of his case, including documents and photographs said to relate to his business and the demolition of his factory in China.
In essence, the Applicant claimed that after returning from several trips abroad with his family (including to Australia) he had, in private conversation with other villagers, praised the capitalist multi-party system and criticised the Chinese political system. Subsequently he sent some of his children overseas to study. He then came to Australia wishing to apply for a business or skilled migration visa. He returned home in April 2013. He claimed he discovered that his brick factory, which had been leased to a contractor, had been demolished by the local authorities in his absence. He explained that they told him that this was a government order to forbid making red bricks using barren hills, but considered that it was a “guise to take personal revenge” on him and “to take ownership of his private property” because of what he had said in his conversations with other villagers about capitalist countries.
The Applicant claimed that when he sought a refund of rent for his factory he was accused by the Party Secretary of spreading capitalist ideas and disrupting law and order; that in anger he smashed the Party Secretary’s office and struck him in an ensuing fight; that that evening bandits arrived at his home looking for him and threatening to kill him; and that they smashed his house but did not find him as he and his family were hiding in a neighbour’s house. He claimed these bandits also said they would return. The Applicant and his family came to Australia using previously booked airline tickets.
The Applicant claimed he left China because his factory was demolished, his home smashed and the lives and livelihood of his family threatened by the local government because of what he had said in his criticisms of the Communist Party. He claimed to fear that if he returned he and his family would again come under threat and continued harm from corrupt Chinese authorities who did not tolerate criticism of the Party. According to the Tribunal, at the hearing he told it that the government would definitely take his life because of what he had said and that he was regarded as a traitor.
The Applicant also made claims that in 2009 the Village Committee had demolished the house he was building in revenge because he had smashed a television set in their office in 2007 when they refused to repay money he had lent them in 1999. He claimed they forcibly took him to the police station and held him there until the house was completely demolished.
The Applicant provided several statements to the Tribunal addressing concerns about the delegate’s decision and photographs of himself engaged in tiling, bricklaying and carpentry work in Australia. He suggested to the Tribunal that he could have a skills assessment on this basis.
In its reasons for decision the Tribunal recorded that it had considered the Applicant’s written and oral claims, but found his evidence on key aspects of his claims to be vague, implausible and inconsistent, including with country information from independent sources.
For reasons which it gave, the Tribunal found that the Applicant had not been truthful about his experiences in China and the reasons he feared returning to that country. It had regard to a number of factors. Relevantly, the Tribunal addressed the Applicant’s central claims that his brick factory was destroyed by the local government in revenge for his praise of capitalist countries he had visited and his criticism of the Chinese political system and that he feared that he and his family would be harmed for such reasons on return to China. The Tribunal found that such claims were unsubstantiated by evidence. It continued at paragraph 19 of its reasons for decision:
By the applicant’s own evidence (statement referenced at paragraph 42.d and confirmed at hearing), he was ‘not politically active or opposed to the Communist party regime’; and his positive comments about capitalism were made in private conversations with neighbours, friends and relatives after his return from abroad in 2011. As discussed with the applicant, country information, such as the 2012 Freedom House report on China, indicates that while freedom of speech is extremely restrictive in China’s media environment, there is ‘relative freedom in private discussion’ and citizens’ push the limits of permissible speech’ (footnote omitted).
The Tribunal referred to the fact that at the hearing, when asked several times how he knew his brick factory was demolished because of his praise of capitalism, the Applicant had not answered, but had simply repeated that this was why it had happened. It also noted that while the Applicant had claimed that the Party Secretary accused him of spreading capitalist ideas and disrupting law and order in April 2013, there was no suggestion that any action was taken against him for this reason.
The Tribunal considered the Applicant’s response to the fact that on his evidence the authorities had taken no action against him between the time he made remarks in 2011 and the time he left China in 2013. He claimed that this was because the authorities used gangsters to kill people. The Tribunal found that this explanation was “speculative and disingenuous”.
The Tribunal also observed that while the Applicant now claimed that he had been labelled a traitor in 2012 for sending his children to study overseas, many Chinese families, including those of party officials, regularly sent their children to study all around the world. The Tribunal found it significant that the Applicant had made no mention of these claims in his original application, but first introduced them in response to the delegate’s decision. It was of the view that he had not been truthful about these claims, but introduced them in an attempt to strengthen his claim for protection.
The Tribunal also found it curious that the Party Secretary had not had the Applicant arrested for his alleged assault and destruction of government property in April 2013, instead sending bandits to try to find him and allowing him and his family to leave China through two airports. It found that the Applicant’s various explanations in this respect were disingenuous. In addition, the Tribunal did not find it credible that the local authorities would not charge the Applicant for destroying government property when he had smashed up the Village Committee office in 2007, but instead took revenge by demolishing the house he was building two years later.
In relation to the claimed incident in 2013, the Tribunal considered inconsistencies in the Applicant’s evidence (to which it referred) including in relation to the whereabouts of local police. It had regard to the fact that while he had claimed there were no police in his locality, this was in contrast to his statement that the Village Committee forcibly took him to the police station in 2009 and his identification of the village police as one of the parties from whom he feared harm on return to China. It also found his evidence about the whereabouts of the closest police station to be inconsistent with that of his wife and daughter. It was not persuaded by his responses when the inconsistency was put to him under s.424AA of the Migration Act 1958 (Cth) (the Act): that there was no police station in the village, only a police “office”, that the country police station was 18 kilometres away; and that women “don’t know about police”.
The Tribunal found that the Applicant did not provide credible evidence as to how he knew that two vehicles of bandits came to look for him and threatened to kill him in April 2013. It did not find it realistic that bandits would shout out in the manner that the Applicant suggested, announcing themselves in such a melodramatic way, especially if they were trying to catch him. It found it implausible that if the gangsters smashed his house and searched around it they did not also look for him at his nearby neighbour’s house.
The Tribunal also had regard to inconsistencies between the Applicant’s evidence about the date on which he said he quarrelled with the Party Secretary and his house was smashed and evidence from international travel movements set out in the delegate’s decision as to the dates on which the Applicant and his family were in China. The Applicant confirmed that there was a mistake on his part. The Tribunal accepted this, but found that the fact that both the Applicant and his daughter gave the same incorrect date for these events suggested an element of collusion was involved in the preparation of evidence.
The Tribunal went on to state that it found the Applicant’s evidence regarding his construction qualification and employment in the construction business was vague and inconsistent. It referred to the fact that in his written statement he claimed that he acquired a certificate of accreditation as an assistant construction engineer in 1998, whereas at hearing he had spoken vaguely about a “construction qualification” and was unable to identify the actual qualification until he showed the Tribunal an untranslated certificate. Further, when asked how he acquired the qualification, the Applicant had stated variously that he did not have “theory knowledge”; that he got the certificate simply by passing a “test by practice” where someone came to inspect his work at a construction site and that “it did not require study”; that this did not mean he did not study to pass the test; and that “they gave us some courses and seminars”.
The Tribunal also had regard to the fact that when discussing what the qualification enabled him to do, the Applicant had said it meant he could contract with big business and have more than 10 staff. He had also said that he did government work and that he had built a school in his village around 1998 which was paid for by the Village Committee. The Tribunal found that this evidence was inconsistent with the Applicant’s earlier evidence that he mainly built houses for private people and did not do business with government because he was “ill-tempered” and they “always required reward or benefit”. It also found it curious that while the Applicant said he got the certificate in 1998 so he could expand his construction business, he also told the Tribunal that after he established his brick factory in March 1998 he concentrated on producing bricks.
The Tribunal stated at paragraph 29 of its reasons for decision:
In light of the above, the Tribunal is not satisfied that the applicant has been truthful about his professional qualifications or employment in China and does not accept that the applicant ever ran a construction business or a brick factory in China. The Tribunal has had regard to documents on the Department’s file, including a business license for the brick factory, as well as the certificate relating his ‘construction qualification’ shown to the Tribunal at the hearing. However, as explained to the applicant, in light of country information regarding the widespread availability of false documents of all kinds in China, including business licenses, diplomas and property certificates, the Tribunal cannot attach weight to the documents provided. Nor does Tribunal give weight to photographs on the Department’s file purporting to show the brick factory before and after it was demolished by the local authorities; because, in addition to concerns raised about them in the delegate’s decision record, it is not apparent from the photographs where and when they were taken or what they signify (footnote omitted).
The Tribunal concluded that, considered together, these reasons led it to find that the Applicant had not been truthful about his experiences in China and the reasons he feared returning. It was not satisfied that he was involved in the construction business or had a brick factory in China, that the brick factory was demolished by the local authorities in 2013 because he praised capitalism or criticised the Chinese political system to other villages after returning from abroad, or for any other reason. It did not accept that he attacked the Party Secretary or smashed his office over this in April 2013, that bandits came to search for him and threatened to kill him or that they smashed his house as a result. It was not satisfied the Village Committee demolished the house the Applicant was building in 2009 in revenge for him smashing furniture in their office in 2007.
The Tribunal found that it followed that it did not accept that if the Applicant returned to China he and his family would be threatened or harmed by the Chinese authorities, including the Party Secretary, the Village Committee, the village police, county government or their bandit accomplices, because of his alleged praise of capitalism or criticism of the Chinese political system while he was in China; because he sent his children abroad to study; or because he took his family abroad.
The Tribunal was of the view that, as discussed with the Applicant at the hearing, in light of his declared interest in migration to Australia, the Applicant had fabricated his claims in order to achieve a migration outcome for himself and his family.
On the evidence before it the Tribunal was satisfied that the Applicant did not have a well-founded fear of persecution in China in the reasonably foreseeable future arising essentially and significantly for one or more of the Convention reasons.
Having regard to its findings that it did not accept that the claimed events occurred and that the Applicant lacked credibility, the Tribunal also did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China there was a real risk he would suffer significant harm within s.36(2A) of the Migration Act.
The Tribunal was not satisfied that any of the Applicants was a person in respect of whom Australia had protection obligations and hence found that it followed that they were unable to satisfy the family unit criteria in the Migration Act. It affirmed the decision not to grant the Applicants protection visas.
The Applicants sought review by application filed in this court on 23 March 2015. Their application was dismissed on 23 April 2015 at the first court date under s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (see AGL15 & Anor v Minister for Immigration and Border Protection & Anor [2015] FCCA 1063).
The Applicants sought leave to appeal to the Federal Court. On 21 July 2015 orders were made by consent by Griffiths J granting the Applicants leave to appeal, allowing the appeal, setting aside the orders of the primary judge and remitting the matter to this court (differently constituted) for redetermination of the claims for relief in the application.
On 25 August 2015, after the remittal, the Applicants caused to be filed a notice of address for service indicating that they were now represented by Ms King of Direct Solicitors. On 31 August 2015 I made orders by consent which gave the Applicants leave to file and serve any amended application and additional evidence and required them to file and serve written submissions 14 days before the scheduled hearing date, with the First Respondent to file and serve written submissions seven days before the hearing date. The matter was listed for final hearing on 15 November 2016.
The Applicants did not file any amended application or affidavit evidence. Nor, despite the fact that they were legally represented, did they file any pre-hearing written submissions.
However, when the matter came before me for hearing on 15 November 2016, Ms King appeared and sought to make oral submissions on behalf of her clients. I allowed her to do so, but foreshadowed that in these circumstances it may be necessary to adjourn part-heard to give the First Respondent an opportunity to respond.
It has to be said that Ms King’s arguments appeared to evolve and change in the course of her oral submissions. The solicitor for the First Respondent expressed some difficulty (which I shared) in being entirely sure that he had really understood the Applicants’ contentions. Nonetheless, he addressed orally what he understood to be the arguments advanced for the Applicants. In the interests of ensuring that the Applicants had the opportunity to put forward the case they wanted to advance and that the First Respondent had the opportunity to respond, I adjourned the matter part-heard on the basis that, notwithstanding their earlier non-compliance, the Applicants file and serve written submissions. The Applicants filed written submissions (described as contentions of fact and law) on 25 November 2016 addressing the ground in the application of 25 March 2015.
When the hearing resumed today, I gave Ms King the opportunity to add to her written submissions which repeated her earlier oral submissions. She indicated that she had nothing to add. The solicitor for the First Respondent made detailed oral submissions, reiterating matters that had been addressed in the pre-hearing written submissions and in oral submissions on 15 November 2016 in response to the Applicants’ oral submissions and addressing the written submissions.
There is one ground in the application. It is as follows:
The Refugee Review Tribunal and the Minister for Immigration and Border Protection did not look at the Applicants’ evidences correctly according to law in making its decision. Its decision is biased and unreasonable.
Insofar as this application purports to seek judicial review of the decision of the delegate of the First Respondent the court has no jurisdiction in that respect as the delegate’s decision is a primary decision within s.476(4) of the Migration Act (see s.476(2)(a)).
The Applicants, who are now legally represented, confined their oral and written submissions to assertions of bias and unreasonableness on the part of the Tribunal. Although they maintained an application to quash the decision of the Tribunal “or” (sic) the Minister and to issue a writ of mandamus to the Tribunal “or” the Minister, it is apparent from the ground in the application and the Applicants’ submissions that their concern was with the decision of the Tribunal.
The Applicants, in essence, assert that the Tribunal decision was “biased and unreasonable”. Their arguments in that respect take issue solely with two particular paragraphs of the Tribunal reasons for decision. The written submissions did not really advance the Applicants’ contentions beyond the oral submissions made on 15 November 2016. On that occasion I asked their solicitor to identify authority in support of the propositions that were being put, to ensure that I understood the basis for the Applicants’ claims. She did not do so and no authority was cited in the written submissions filed on 25 November 2016.
The first contention is an assertion of bias on the sole basis of what appears in part of paragraph 29 of the Tribunal decision (set out at [21] above). It was submitted that the First Applicant’s “professional qualifications or employment history in China are genuine”.
In paragraph 29 of its decision the Tribunal found, in light of its findings in the preceding paragraphs, that it was not satisfied that the Applicant had been truthful about his professional qualifications or employment and that it did not accept that he had run a construction business or a brick factory in China.
The part of the paragraph with which the Applicants’ submissions take issue is the Tribunal’s consideration of the documents on the Department’s file, including a business licence and construction certificate provided at the hearing and its finding, in light of country information regarding the widespread availability of false documents of all kinds in China, that it could not attach weight to the documents provided and that it did not give weight to the photographs on the Department’s file purporting to show the brick factory before and after it was demolished by the local authorities.
The Applicants referred, by way of contrast, to the part of the delegate’s decision (at p.110 of the Courtbook) in which the delegate had stated in relation to the documentary and photographic evidence submitted by the Applicant, that he accepted that the Applicant was the owner and operator of a brick factory as claimed. The delegate accepted the Applicant’s evidence in this regard and the supporting documentary evidence and also accepted his claim that in 1999 he lent the Village Committee 5000 RMB. The delegate noted the contract between the Applicant and the Village Committee.
The Applicants submitted that:
…the Tribunal did not have evidence before it to say that the Applicant’s professional qualifications were bogus documents or fraudulent. It is open for the Department of Immigration to verify whether those documents are, in fact, bogus or fraudulent. If there were Bogus or fraudulent documents are wide spread in China (sic), it does not mean the Applicant’s business licences are bogus or fraudulent (errors in original).
At the hearing on 15 November 2016, the Applicants’ solicitor confirmed that the only argument she wished to make in relation to paragraph 29 of the Tribunal decision was an allegation of actual bias and that the only issue relied on in support of the contention of bias was the Tribunal’s approach to the documents provided by the Applicants.
It is well-established that an allegation of bias is a serious allegation which must be distinctly made and clearly proved. It involves personal fault on the part of the decision-maker. In this case, it has not been established that the Tribunal had the state of mind in the form of prejudgment of being so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs vJia Legeng (2001) 205 CLR 507; [2001] HCA 17). It is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons for decision (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per von Doussa J at [38]). There is no transcript of the Tribunal hearing in evidence and, in any event, no reliance was placed on what occurred at the hearing.
The Tribunal’s adverse findings (including disbelief of an Applicant’s claims) are not in themselves sufficient to establish bias (see VFAB of 2002 v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 102; [2003] FCA 872, SCAA, WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286). As the Minister submitted, in the circumstances of this case the complaints made by the Applicants in relation to the Tribunal’s approach to the documentary evidence and its findings in paragraph 29 of its reasons for decision are not such as to establish bias or, indeed, otherwise such as to establish jurisdictional error.
Insofar as the Applicants submitted that the Tribunal did not have evidence before it to say that the First Applicant’s professional qualifications or documents were bogus or fraudulent and appeared to suggest that the Tribunal should have followed the approach of the delegate, this misconceives the Tribunal’s role on review of a decision of a delegate. It is a de novo review. The Tribunal is obliged to consider the application and the visa criteria independently. It is not obliged to adopt or to address the delegate’s reasoning. Its failure to do so is not indicative of bias.
The Tribunal’s function is to respond to the case advanced by an applicant. The applicant is to put forward information and materials relied upon and, under s.65 of the Migration Act 1958 (Cth), if not affirmatively satisfied that the criteria for the visa in question have been satisfied, the Tribunal is required to refuse the application. The Tribunal is not required to grant a visa in the absence of an adverse finding (Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 per Black, Sundberg, Bennett JJ at [17]) or to uncritically accept any claims of an applicant.
The selection, assessment and weight to be accorded to independent evidence (insofar as the Tribunal relied on independent evidence in the context of considering the Applicants’ documentation) is a matter for the Tribunal (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51). The Tribunal in this case did not ignore or fail to have regard to the documentary evidence in a manner indicative of bias. It assessed it and weighed it in the balance.
It is also important to note that while the part of paragraph 29 quoted in the Applicants’ submissions involved a discussion of the documentary and photographic evidence submitted, the Tribunal’s findings were cumulative. In relation to the particular issue of the Applicant’s qualifications and employment history the Tribunal had regard to the documents provided but found, in light of the concerns which it had set out in some detail, that it was not satisfied that the Applicant had been truthful about his professional qualifications or employment in China. It gave detailed reasons for those particular findings, having regard to his vague and inconsistent evidence in relation to his construction qualification and employment. In light of that evidence and its earlier findings, the Tribunal did not accept the Applicant ever ran a construction business or a brick factory in China. It then addressed the documentary evidence. It was reasonably open to the Tribunal on the material before it to take the approach that it did in that respect for the reasons which it gave. It did not fail to consider the documentary evidence. Its findings in that regard are not such as to establish prejudgment amounting to bias on its part (which is the only contention relied on by the Applicants in relation to paragraph 29 of the Tribunal reasons for decision).
As the First Respondent submitted, the Tribunal was not obliged to uncritically accept any and all allegations of the Applicants, including those that were said to be supported by the documentary evidence. It did not need rebutting evidence, either to not accept the claims or to proceed as it did in giving no weight to the particular documentary evidence in question, having regard to its obligations under s.65 of the Act and the Applicant’s obligation to make out his case. It referred to the evidence to which it had regard. This has not been shown to be a case in which the Tribunal was under an obligation to inquire in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. Insofar as this ground involves an attack on the merits of the Tribunal decision, as appears from the assertion that the First Applicant’s professional qualifications and employment history were “genuine”, merits review is not available in this court.
Having regard to paragraph 29 in context, the matters on which the Tribunal relied to reach the conclusions that it did, both in relation to these documents and the Applicant’s credibility, were cogent and the conclusions reasonably open to the Tribunal. There was a factual basis for such findings. Bias is not made out on the basis contended for by the Applicants.
Before considering the allegation of legal unreasonableness, I note that there was no suggestion of apprehended bias in the Applicants’ written submissions. In any event, the Applicant has not filed any evidence, such as a transcript of the Tribunal hearing, to support an allegation of apprehended bias. I bear in mind that, as pointed out in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 by the High Court and MZZBT v Minister for Immigration and Citizenship & Anor [2013] FCCA 462 at [45] it is not generally appropriate to have recourse to the decision record in order to establish apprehended bias. There is nothing in the material before the court (or, in the Applicants’ submissions) supportive of any contention of apprehended bias seen from the appropriate objective perspective of the informed lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).
The other aspect of the ground relied on by the Applicants was addressed as follows in the written submissions:
On the ground of unreasonableness, the Applicants submit that the Tribunal drew its inferences from the Freedom House report is unreasonable (sic).
In support of the contention of unreasonableness, the Applicant relied solely on paragraph 19 (set out at [11] above) of the Tribunal reasons for decision. The Tribunal referred to the Applicant’s evidence that he was not politically active or opposed to the Communist Party regime and that his comments about capitalism had been made in private conversations. It went on to find:
…As discussed with the applicant, country information, such as the 2012 Freedom House report on China indicates that while freedom of speech is extremely restrictive in China’s media environment, there is ‘relative freedom in private discussion’ and citizens’ push the limits of permissible speech’.
It appears that the Applicants’ concern is that in contrast, in the course of his decision, the delegate had said (p.108 of the Courtbook):
I accept that speaking of western values and capitalism in China could be viewed as an anti-Chinese Government political opinion opposing the policies of the Chinese Communist Party.
The Applicants submitted that “as the delegate had no issue in accepting speaking of western values and capitalism in China could be viewed as an anti-government political opinion opposing the policies of the Chinese Communist Party, the Tribunal did not take into consideration the delegate’s findings the Tribunal simply drew its inferences based on the Freedom House report”.
First, insofar as it was contended that the Tribunal simply “drew its inferences” from the Freedom House report, that is contrary to what the Tribunal stated. It referred more generally to country information, the effect of which was discussed with the Applicant at the hearing. It gave the Freedom House report as an example.
More generally, the review conducted by the Tribunal is a de novo review. It is not bound by the delegate’s findings. It is not required to consider or refer to the delegate’s findings. The choice and weight to be accorded to evidence, including independent country information, is a matter for the Tribunal, not the court.
No authority was cited for the Applicants in support of the contention in relation to unreasonableness. No distinction was drawn between errors amounting to jurisdictional error on the basis of illogicality or irrationality in the course of making findings (which, in essence, seems to be the concern in this case) and legal unreasonableness in relation to a Tribunal decision. The Applicants did not address the different ways in which the concept of unreasonableness may be used relevant to judicial review (cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71] and [76] per Hayne, Kiefel and Bell JJ and at [27]-[28] per French CJ and see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1).
In any event, illogicality or irrationality such that a decision could be said to be one at which no rational or logical decision-maker could arrive on the same evidence sufficient to give rise to jurisdictional error (in the sense considered in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 or otherwise) is not made out. Nor is legal unreasonableness established in the sense considered in Li or Singh. The concerns the Applicants expressed in relation to paragraph 19 of the Tribunal reasons for decision are not such as to establish that no rational or logical decision-maker could have arrived at the same conclusion on the same evidence.
As pointed out in SZMDS at [130], not every lapse of logic will give rise to jurisdictional error and if probative evidence could give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from the evidence, a decision cannot be said by the court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Neither the Tribunal’s fact finding nor its ultimate decision is such that it can be said that only one conclusion was open on the evidence to which it did not come, or that the finding in paragraph 11 or the Tribunal’s ultimate decision was not reasonably open to it on the evidence before it. Nor can it be said that there was no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal.
The Tribunal’s decision (as well as this aspect of the decision) has an evident and intelligible justification. The Tribunal engaged in a consideration of the Applicant’s claims in the context of considering the application for a Protection visa. The Tribunal identified concerns generally and in relation to the Applicant’s evidence (including the documentary evidence), and had regard to country information. It was open to the Tribunal to have regard to such information in light of the Applicant’s own written and oral evidence about his lack of political activity or opposition to the Communist Party regime and the fact that the comments he made about capitalism were only made in private conversations with neighbours, friends and relatives. There was a rational context for the Tribunal’s views at paragraph 19 and also for its ultimate conclusion that the Applicant did not face a real chance of serious harm or a real risk of significant harm for the reasons advanced. It is to be borne in mind that the concept of legal unreasonableness is not a means for challenging a decision simply on the basis of disagreement with the Tribunal’s consideration of matters or the evaluative judgments made by the Tribunal (see Li at [30] and [113]).
It has not been established that the Tribunal’s conclusion was unreasonable or that there was not an intelligible justification apparent in the reasons such that the decision was legally unreasonable. The fact that the Tribunal reached the view that it did, including having regard to country information in relation to whether there is relative freedom in private discussion in China, is not such as to establish that the Tribunal decision did not meet the legal standard of reasonableness.
Neither bias nor legal unreasonableness is made out. Insofar as the ground in the application refers to bias and unreasonableness, it is not made out.
It was also asserted in this ground that the Tribunal did not look at the Applicant’s evidence correctly according to law in making its decision. There was no elaboration on this contention in the Applicants’ submissions, beyond the assertions about bias and unreasonableness based on the two paragraphs of the Tribunal decision to which I have referred. In any event, insofar as this part of the application seeks merits review, merits review is not available in this court. It was not contended that the Tribunal failed to have regard to any integers of the Applicant’s claims. It has not been established that the Tribunal failed to have regard to evidence in a manner amounting to jurisdictional error (cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263).
The ground in the Application is not made out. As jurisdictional error has not been established on any basis contended for by the Applicants, the application must be dismissed.
The Applicants have been unsuccessful. It is appropriate that they meet the Minister’s costs. The Minister seeks costs in the sum of $7,000. The Applicants’ solicitor did not wish to be heard in relation to costs. I consider that this amount is appropriate and reasonable having regard to the particular circumstances of this case, its nature and other similar matters.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 14 December 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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