Ajb17 v Minister for Immigration

[2019] FCCA 2854

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJB17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2854

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether Tribunal was biased – whether Tribunal considered applicant’s written claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: AJB17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 263 of 2017

Judgment of: Judge Manousaridis

Hearing date: 2 October 2019

Date of Last Submission: 2 October 2019

Delivered at: Sydney

Delivered on: 9 October 2019

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms K Dunlop of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 263 of 2017

AJB17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, applies for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. In a statement that accompanied his application for a Protection visa, the applicant made the following claims:[1]

   a)The applicant started practising Falun Gong at the end of 1996 when he learned about its benefits from his PE teacher. He practised Falun Gong with his PE teacher every weekend for two and a half years.

   b)In 1999 the Chinese government began persecuting Falun Gong practitioners, and the applicant’s PE teacher was arrested.

   c)After the applicant graduated, he worked as a security guard which involved heavy physical exercise. He began practising Falun Gong again from August 2008 to relax. He practised in the morning at home. One morning in August 2009, the applicant’s colleague came into the applicant’s house and found him practising Falun Gong. The applicant asked him not to tell others and he agreed. In June 2010, however, this person became drunk at dinner with colleagues, and he talked about the applicant practising Falun Gong. The next day two policemen came to the applicant’s home around noon and took him to the police station. He was interrogated there for a day and a night, and then sent to a detention centre where he was detained for six months and tortured. He was only released after his parents paid the head officer of the police station CNY50,000.

   d)The applicant stayed home for six months and then left his hometown to find work in Shenyang. In September 2011 the Fushun police came to Shenyang to arrest him and took him back to Fushun where he was arrested for two months and forced to attend brainwashing classes.

   e)The applicant’s parents realised the applicant had to go abroad to avoid persecution and helped him to prepare documents. The applicant paid bribes to the head officer of the police station three times because he could not afford to have any more trouble from them. He gave CNY10,000 each time until he departed for Australia in March 2014.

   [1] CB15-17

Tribunal’s reasons

1. The Tribunal did not find the applicant to be a credible and truthful witness. It found the applicant fabricated his claims in relation to his fear of persecution as a Falun Gong practitioner.[2] The Tribunal relied on a number of matters.

   a)First, the applicant was unable to identify what the Tribunal identified and considered to be basic information about the precepts and practices of Falun Gong. The Tribunal noted that the exercise the applicant demonstrated “was nothing more than a conventional meditation sitting cross-legged with hands in a traditional meditative position”, and that the book the applicant claimed to have in his possession in China was not one of the texts for Falun Gong or Falun Dafa.[3]

   b)Second, the applicant’s written claims included more details than the applicant was able to recall at the hearing, including the claim he had been brainwashed.[4]

   c)Third, the Tribunal found that the applicant’s claims “are extremely similar in its specifics to a number of other claims before the Tribunal from the same migration representative”.[5]

   [2] CB98, [44]

   [3] CB98-99, [49]

   [4] CB99, [50]

   [5] CB99, [50]

2. The Tribunal, therefore, did not accept the applicant practices Falun Gong in his own home in Australia; or that he has any knowledge, understanding, or belief in Falun Gong teachings and practices; or that the applicant was arrested by police in 2010 or detained for a period of six months or mistreated by police during this period; or that the applicant was again arrested in September 2011 and detained for a period of two months. The Tribunal, therefore, was not satisfied the applicant has a genuine fear of persecution in China for a Convention reason as a result of his practice or belief in Falun Gong or for any other reason; and it was not satisfied there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm if he returns to China now or in the foreseeable future

Grounds of application

1. The application contains the following three grounds of review:

   1.THE SECOND RESPONDENT FAILED TO CONSIDER MY APPLICATION ACCORDING TO S424A OF THE MIGRATION ACT.

   2.THE SECOND RESPONDENT HAS BIAS AGAINST ME IN MAKING ITS DECISION.

   3.THE SECOND RESPONDENT DID NOT FULLY CONSIDER MY WRITTEN CLAIM FOR A PROTECTION VISA.

2. The applicant, who is not legally represented, made no submissions in relation to ground 1. The Minister, on the other hand, made two submissions. First, the ground does not particularise the information to which the applicant alleged s.424A of the Migration Act 1958 (Cth) (Act) applied such as to require the Tribunal to comply with its requirements. Second, the Tribunal’s reasons show there were two items of information to which the Tribunal considered s.424A of the Act applied, and that it sought to comply with s.424A of the Act by complying with s.424AA. The Minister submits that although the Tribunal was incorrect to believe that one of the two items of information was information to which s.424A of the Act applied, the Tribunal’s reasons show that the Tribunal correctly applied s.424AA of the Act and, to that extent, complied with s.424A of the Act. The Minister submitted that, in the absence of evidence to the contrary, the Court should accepted that the Tribunal’s decision record accurately reflects the matters to which it refers.[6] I accept the Minister’s submissions.

   [6] The Minister relied on NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241, at [21]: “In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.”

3. Ground 1, therefore, fails.

4. Ground 2, as it stands, discloses no jurisdictional error because it is unparticularised. At the hearing the applicant stated that he told the Tribunal the truth from the beginning and it did not believe him. When I asked the applicant whether that was the only reason on which he relied for claiming the Tribunal was biased, the applicant said it was; and he confirmed there was no other matter on which he relied for claiming the Tribunal was biased. As the Minister submitted, adverse findings recorded in a decision record are not by themselves capable of raising a claim of actual bias. That point was made by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs:[7]

   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. . . or a failure to enquire into and to obtain readily available and important information relating to central matters for determination . . . 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.

   [7] [2002] FCA 668, at [38]

5. These observations apply with equal force to allegations of apprehended bias.

6. Ground 2, therefore, also fails.

7. The applicant made no submission in relation to ground 3, which claims the Tribunal did not fully consider the applicant’s written claims. That claim cannot be established. As submitted by the Minister, the Tribunal accurately set out the applicant’s written claims under the heading “Written statement of claims dated 16 October 2014”, and considered those claims.

Conclusion and disposition

1. The applicant has failed on each of the grounds stated in the application. I propose, therefore, to order that the application be dismissed.

2. I discussed with the applicant the question of costs, noting that the usual order is that a losing party pays the costs of the party who succeeds. Ms Dunlop, who appeared for the Minister, said that if the Minister succeeds the Minister would seek an order for costs, and an order that the costs be set in the amount of $5,000. The applicant made no submission against my applying the usual order as to costs, or, if the Minister were to succeed, my setting the Minister’s costs in the sum of $5,000.

3. Having failed in his application, the applicant should be ordered to pay the Minister’s costs. I am satisfied that it is reasonable to set those costs in the amount of $5,000. I also propose to order, therefore, that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 October 2019