Ajb17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 455
•29 April 2022
FEDERAL COURT OF AUSTRALIA
AJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 455
Appeal from: AJB17 v Minister for Immigration & Anor [2019] FCCA 2854 File number: NSD 1754 of 2019 Judgment of: CHARLESWORTH J Date of judgment: 29 April 2022 Catchwords: MIGRATION – appeal from orders dismissing an application for judicial review of a migration decision of the Administrative Appeals Tribunal – appellant a citizen of the People’s Republic of China – appellant claiming to fear persecution if returned to China on the grounds of religion because he is a Falun Gong practitioner – Tribunal finding the appellant’s claims had been fabricated – whether Tribunal committed jurisdictional error by failing to comply with s 424AA or s 424A of the Migration Act 1958 (Cth) – no such jurisdictional error – grounds of appeal otherwise unparticularised – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 420, 422B, 425, 424AA, 424A, 474 Cases cited: AJB17 v Minister for Immigration & Anor [2019] FCCA 2854
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543
Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 10 August 2021 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms K Evans Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 1754 of 2019 BETWEEN: AJB17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 18 March 2014 as the holder of a student visa issued under the Migration Act 1958 (Cth). He applied for a protection visa six months after his arrival. A delegate of the first respondent (the then-named Minister for Immigration and Border Protection) refused the application. That decision was affirmed by the Administrative Appeals Tribunal. The formerly-named Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal’s decision: AJB17 v Minister for Immigration & Anor [2019] FCCA 2854. This is an appeal from that judgment.
THE ACT
The criteria for the grant of a protection visa include those prescribed in s 36 of the Act. It relevantly provides:
36 Protection visas-criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
…
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; or
…
(2C)A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
The Tribunal affirmed the delegate’s decision in the exercise of its powers of review conferred under Pt 7 of the Act. In reviewing the delegate’s decision, the Tribunal was required to act according to substantial justice and the merits of the case: Act, s 420(b). The conduct of the Tribunal’s review was governed by Div 4 of Pt 7 of the Act. Division 4 is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters it deals with: Act, s 422B.
Section 425 of the Act provides that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments about the issues arising in relation to the decision under review. Section 424AA(1)(a) provides that if a review applicant is appearing before the Tribunal because of an invitation under s 425, the Tribunal may orally give to the applicant “clear particulars of any information that the Tribunal considers would be a reason, or part of the reason, for affirming the decision” under review. Section 424AA(1)(b) provides that if the Tribunal does so, it must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Section 424A of the Act relevantly provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
THE TRIBUNAL’S DECISION
The appellant made claims in support of the protection visa criteria in a written statement dated 16 October 2014 and further claims at a hearing before the Tribunal on 21 December 2016.
The content of the appellant’s written statement is correctly summarised in the reasons of the primary judge (at [2]) in terms that I gratefully adopt:
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 [redacted] police came to Shenyang to arrest him and took him back to [redacted] 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.
(footnote omitted)
In its reasons for decision the Tribunal set out the further information provided orally by the appellant, relevantly including the following:
29.The applicant said that he started practicing Falun Gong at the end of 2014 in Australia but only once or twice per week in secret because he was still scared as ‘he has a shadow in his heart’. He rarely went out or left the house so he didn't know if it was ok to practice Falun Gong in Australia. The Tribunal put to him that he lodged his claim for protection five months after arriving in Australia in August 2014 so he must have been aware by then that it was ok to practice Falun Gong here.
30.The applicant told the Tribunal that he currently practices Falun Gong once a week or once a fortnight. The Tribunal asked the applicant if anyone in Australia knows that he practices Falun Gong. The applicant said that his previous roommate [redacted] witnessed his practice of Falun Gong in Australia. His current roommate [redacted] may have seen his Falun Gong book and seen him practice. No-one else has seen him practice.
31.The applicant said that he has Falun Dafa books. The Tribunal asked him which text or texts he owns. He said that one book is called ‘Falun Dafa is good’. The book talks about how the Chinese government persecutes practitioners of FG and has pictures of people who had been persecuted by the government. This is the same book that he had in China that was seen by his work colleague.
32.The Tribunal asked the applicant to describe the purpose of Falun Gong and also to describe the exercises. The applicant said that Falun Gong asks you to cultivate your body and qi every time you sit quietly and close your eyes. He needs to focus and close both his eyes and not think about anything. He demonstrated that he sits cross legged with his hands in a traditional meditative pose. He said he does not have the courage to sit for long because he is still scared because of the persecution he underwent in China. There are other exercises but he does not do them because he is too scared. He could not describe these exercises at all or say how many there are or anything about them. He was unaware of any verses that should be recited.
33.The Tribunal asked the applicant to be more explicit about the teachings of Falun Gong. He said that the teachings were about strengthening your body and doing exercises to be stronger and healthy. A person just had to concentrate to let the qi flow. It is just like qigong. He knew that Li Hongzhi introduced Falun Gong to China. When asked when it was introduced he said he thought it was in 1996.
The Tribunal went on to state that it had put to the appellant its concerns that “he appeared to have no idea what Falun Gong involves”. The Tribunal continued (at [34]):
The exercise he demonstrated was not any of the exercises in Falun Gong teachings; he was unaware of the two major texts: and he could not describe the key principles of Falun Gong. The applicant said that he started practicing when he was very young and by 1999 the government had banned its practice. Then he practiced on his own so his knowledge was not very good but what he was doing was Falun Gong. Falun Gong had a number of different versions and he was doing one version.
The Tribunal went on to state that it had put “information” to the appellant pursuant to s 424AA of the Act and described his responses as follows:
35The Tribunal put to the applicant that in his written statement of claims lodged on 19 August 2014 he had said he was subjected to brainwashing classes during his second period of detention in September 2011. The applicant said that he told his lawyer this but now he realised it was not brainwashing classes. There were just 10 people together in the room whom the police questioned one by one.
36.The Tribunal put information to the applicant pursuant to s.424AA of the Migration Act that his claims were very similar in specific details to other claims before the Tribunal, such as he learned about Falun Gong from his PE teacher in 1996, stopped practising Falun Gong after his PE teacher was arrested in 1999 and recommenced practising on his own for his health some years later. Subsequently a colleague informed on him to the police and he was detained for a substantial period of time. The claims were all lodged with the assistance of the same migration agent. These similarities combined with his lack of knowledge about what was involved in the teachings and practice Falun Gong would suggest that he had fabricated his claims. The applicant denied fabricating his claims and stated that he was a practitioner Falun Gong and he had been arrested and detained in China on two occasions.
The Tribunal referred to a “background paper” titled “China – Falun Dafa, December 2012” and summarised some of its contents concerning the history, underlying philosophy and practice of Falun Gong. It stated that in response to its questions, the appellant had been unable to identify any of the information to which it had referred, including that he was unable to identify five exercises referred to in the information and the names of those exercises. The Tribunal continued (at [49]):
… The exercise he demonstrated was nothing more than a conventional meditation sitting cross-legged with hands in a traditional meditative position. The book he claimed to have in his possession in China was not one of the texts for Falun Gong or Falun Dafa. The Tribunal considers the applicant’s evidence that he had a book which had photos of the Chinese government persecuting Falun Gong practitioners to lack credibility given the availability of such literature in China is extremely restricted as it is prohibited.
The Tribunal said that the claims the appellant had made in his written statement included more details than he was able to recall at the hearing, including the claim that he had been brainwashed during his second episode of detention in 2011. The Tribunal said that it did not find convincing the appellant’s response that he now knew that what had occurred was not brainwashing. The Tribunal said that the appellant’s claims were “extremely similar in its specifics to a number of other claims before the Tribunal from the same migration representative”.
The Tribunal concluded that the appellant was not a witness of truth and that he had fabricated his claims to have been a Falun Gong practitioner in China and in Australia for the purpose of obtaining a permanent visa and so affirmed the delegate’s decision.
THE APPLICATION FOR JUDICIAL REVIEW
In the proceedings before the primary judge, the onus was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The appellant was self-represented in the proceedings before the primary judge, as he was in this Court. His three grounds for judicial review were expressed as follows:
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.
The primary judge observed that the appellant had made no submissions in relation to the first ground, before going on to state that he had accepted the two submissions of the Minister, summarised (at [6]) as follows:
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 [sic] that the Tribunal’s decision record accurately reflects the matters to which it refers. …
In respect of the second ground, the primary judge noted that the ground “as it stands” did not disclose jurisdictional error because it was un-particularised. His Honour said that the only matter the appellant had raised in support of the ground was a complaint that the Tribunal had not believed him. The primary judge said that adverse findings recorded in a decision record were not of themselves capable of raising a claim of actual or apprehended bias. His Honour referred to SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].
The third ground of review was rejected because the appellant had made no submissions in support of it and because the Tribunal had set out the appellant’s written claims in its decision record and had in fact considered them (at [11]).
GROUNDS OF APPEAL
There are four grounds of appeal:
1.FEDERAL CIRCUIT COURT FAILED TO CONSIDER THE SECOND RESPONDENT ACTED IN BREACH OF THE RULES OF PROCEDURAL FAIRNESS.
2.THE SECOND RESPONDENT IS AFFECTED BY JURISDICTIONAL ERROR IN THAT IT DID NOT PUT ADVERSE INFORMATION RELIED UPON AS PART OF THE DECISION TO THE APPELLANT FOR COMMENT.
3.THE SECOND RESPONDENT HAS IGNORED RELEVANT CONSIDERATION IN MAKING THE DECISION.
4.THE SECOND RESPONDENT HAS BIAS AGAINST ME IN MAKING ITS DECISION.
The appellant did not file any written submissions in support of these grounds or otherwise give written particulars of them. The grounds should nonetheless be generously interpreted, having regard to the appellant’s status as a self-represented litigant. I will proceed on the basis that the appellant intends to allege that the primary judge erred in failing to identify that the Tribunal had made four errors, and that the asserted errors are alleged to be jurisdictional in their nature.
At the commencement of the hearing of the appeal, the Court invited the appellant to make oral submissions in support of the grounds. The Court explained to the appellant that it was critical that he support the grounds by providing as much detail as he could.
Grounds 1 and 2
In support of these grounds the appellant alleged that the Tribunal had considered some information that was adverse to him and that he had not been provided with “a lot of opportunities to explain”. He told the Court that there were many things he was unable to remember about his practice of Falun Gong in China. He asserted that he had stopped practicing after he arrived in Australia. He complained that when he was requested by the Tribunal to demonstrate the Falun Gong exercises, his demonstration was rejected. The appellant submitted that knowledge of Falun Gong had nothing to do with the genuineness of his application for protection because he had only practiced Falun Gong when he was very young.
The appellant did not take issue with the Tribunal’s narrative as to what he had said or done at the hearing before it, nor with the Tribunal’s statements as to the particular information that had been put to him for his response and comment. In the absence of a specific challenge to the correctness of the factual narrative set out in the Tribunal’s decision record concerning the conduct of the hearing, the primary judge did not err by taking the decision record at face value.
It appears from the oral submissions on this appeal that the “information” that had not been put to the appellant was the finding that the practice as demonstrated by him bore no relation to the practices described in the background paper to which the Tribunal referred in its decision, and that his knowledge of Falun Gong was therefore limited. The appellant did not allege that the background paper itself had been withheld from him.
I am satisfied that the fact of the difference between the information contained in the background paper and the knowledge (or lack thereof) demonstrated by the appellant before the Tribunal was adverse information in the sense that it contributed to the Tribunal’s finding that his claims to have previously been a Falun Gong practitioner had been fabricated. The gravamen of the complaint made before this Court is that he had not been afforded the opportunity to explain that divergence.
In the proceedings before the primary judge, the appellant did not demonstrate that the Tribunal had failed to provide him with the background paper containing information concerning Falun Gong practices. In respect of the extent of the appellant’s own knowledge concerning Falun Gong and its practices, that information was given by the appellant at the hearing before the Tribunal and for the purpose of his application for review. Accordingly, s 424A had no application to it: Act, s 424A(3)(b).
Furthermore, as I have previously mentioned, the appellant has not challenged the Tribunal’s summary of the things he had said before it concerning his continued practice of Falun Gong whilst in Australia. That summary does not support the appellant’s submissions in this Court to the effect that he only practiced Falun Gong when he was very young. Rather, the decision record states that he claimed to have commenced the practice from his third year in primary school, and that he was engaged in the practice in 2008, 2009 and 2010. The appellant told the Tribunal that he continued to practice Falun Gong, notwithstanding the threatened and actual persecution he claimed to suffer as a consequence. He told the Tribunal that he continued to practice Falun Gong when he arrived in Australia in 2014 and afterward. His practice whilst in Australia was described by the Tribunal in the terms extracted at [8] above.
As mentioned previously, the Tribunal’s decision contains a statement that it had put to the appellant its concerns that he “appeared to have no idea what Falun Gong involves”, and that he had responded as follows (at [34]):
… The applicant said that he started practicing when he was very young and by 1999 the government had banned its practice. Then he practiced on his own so his knowledge was not very good but what he was doing was Falun Gong. Falun Gong had a number of different versions and he was doing one version.
In light of that passage, even if the existence of a divergence between the appellant’s knowledge and the information contained in the background paper was “information” to which either s 424AA or s 424A applied, the decision record plainly demonstrates that the “information” had indeed been put to the appellant and that he had indeed been afforded an opportunity to respond.
The appellant’s submissions in support of this ground did not otherwise challenge the Tribunal’s conclusion that his written claims for protection were substantially the same in their content as claims that had been made on behalf of other visa applicants represented by the same migration agent. Nor did he challenge the Tribunal’s finding that he was unable to recall aspects of his written claims, nor its rejection of his explanation for his lack of recall. It is unnecessary to decide whether the Tribunal committed jurisdictional error in respect of those discrete classes of information.
Accordingly, grounds 1 and 2 must fail.
Ground 3
The error alleged in this ground was not raised in the proceedings before the primary judge. It is necessary to consider whether the appellant should be granted leave to advance it on this appeal. The principles guiding the Court’s discretion to grant leave are well establish and need not be set out in detail here: see generally Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at [71]; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 at [18] and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46].
In determining whether leave should be granted, the appellant’s status as an unrepresented litigant at first instance would ordinarily be given considerable weight, not least of all because that status might furnish an adequate explanation for not raising the argument at an earlier time.
In the present case, however, I am not satisfied that the argument sought to be advanced in ground 3 enjoys sufficient prospects of success so as to justify the grant of leave, notwithstanding the appellant’s lack of legal knowledge or assistance. When invited to articulate the relevant consideration that had been ignored by the Tribunal, the appellant did not identify a “consideration” the ignorance of which would support an arguable case that the Tribunal committed jurisdictional error. When pressed to identify the relevant consideration, the appellant submitted that the Tribunal “ignored the fact that I applied for refugee status and that’s truthful”. The Tribunal was plainly aware that the appellant had applied for refugee status. Leave to advance the argument in ground 3 is refused.
Ground 4
An allegation of bias (whether actual or apprehended) must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J (at 531).
When asked to advance oral submissions in support of this ground, the appellant said he had nothing further to explain. To my mind, that response demonstrates that the primary judge correctly understood the claim of bias as raised at first instance to be a complaint by the appellant that the Tribunal had not believed his claims. Of itself, that is insufficient to support an allegation of bias or apprehended bias. The primary judge was correct to so find. Accordingly, this ground cannot succeed.
It follows that the appeal must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 29 April 2022
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