Aju17 v Minister for Immigration
[2017] FCCA 2358
•26 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJU17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2358 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in China because of the actions of a particular person – first applicant not believed – whether the Tribunal was biased, acted unreasonably or otherwise erred in considering the applicants’ claims considered – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Cases cited: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v SZNPG (2010) 115 ALD 303 SBBS v Minister for Immigration [2002] FCAFC 361; (2002) 194 ALR 749 SZJYM v Minister for Immigration & Anor [2008] FMCA 652 |
| First Applicant: | AJU17 |
| Second Applicant: | AJV17 |
| Third Applicant: | AJW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 277 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2017 |
REPRESENTATION
| The First and Second Applicants appeared in person |
| Solicitors for the Respondents: | Mr A Baril of Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the names of the applicants are not to appear on the transcript of today’s proceedings.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 277 of 2017
| AJU17 |
First Applicant
| AJV17 |
Second Applicant
| AJW17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are three applicants who are a wife, her husband and their child. Background facts relating to their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 19 September 2017.
Background
The first applicant (applicant) is a female citizen of China who arrived in Australia on 24 October 2007 travelling on a Schools Sector (subclass 571) visa. On 15 March 2010, the applicant’s last subclass 571 visa ceased and she remained in Australia as an unlawful non-citizen[1]. The applicant married the second applicant, also a citizen of China, on 20 October 2013[2]. On 28 July 2014, the first and second applicants applied for protection (class XA) visas[3]. The applicant’s child, the third applicant, was born on 3 September 2014, and taken to have been included in his parents’ protection visa application on his date of birth[4].
[1] Court Book (CB) 110
[2] CB 109
[3] CB 1
[4] CB 62
On 22 June 2015, the delegate refused to grant protection visas to the applicants[5]. On 17 July 2015, the applicants applied to the Tribunal for review of the delegate’s decision[6]. On 16 November 2016, the applicant appeared before the Tribunal with her representative to give evidence and present arguments. The second applicant also gave evidence at the Tribunal hearing[7]. On 9 January 2017, the Tribunal affirmed the decision not to grant the applicants protection visas[8].
[5] CB 121
[6] CB 123
[7] CB 147
[8] CB 160
Applicant’s claims
The applicant’s claims in respect of her fear of harm in China are set out in her protection visa application, and may be summarised as follows[9]:
a)the applicant’s father worked in construction for a Mr H[10]; in January 2006, an entity by the name of “Fangcao Company” sent gangsters to assault and threaten Mr H and the applicant’s father;
b)Mr H and the applicant’s father made a report to the police, who failed to do anything; the authorities alleged that Mr H and the applicant’s father would “harm social security”; on 9 March 2006, Mr H and the applicant’s father were arrested by the police and detained for more than three weeks and subjected to “inhuman torture”;
c)the head of the applicant’s father’s village refused to be a guarantor for his release unless the family agreed to the engagement of his son with the applicant and to marry when the applicant came of age[11];
d)the engagement took place and the applicant was treated as a slave in her fiancé’s family; she looked after her fiancé and did heavy housework; if she did not satisfy the family they would physically punish her; the applicant made reports to the police, but they refused to help;
e)friends of the applicant’s parents had to bribe police and an official to obtain the applicant’s passport and to guarantee that she was able to leave China smoothly;
f)the village head was very angry that the applicant had left and colluded with the police to “frame” the applicant’s father who went into hiding; and
g)the village head and his men made troubles with/assaulted the applicant’s mother and siblings, and seriously damaged the family house; the applicant’s family members left China/went into hiding.
[9] CB 11; see Tribunal decision at [13]-[21]
[10] The name has been anonymised
[11] CB 20
In her interview with the Minister’s Department, the applicant expanded on her claims in relation to torture and abuse by her fiancé. The applicant claimed to fear harm from the village head and the local police[12]. At the Tribunal hearing, the second applicant claimed to also fear harm from the village head on his return to China[13].
[12] CB 112-115; see Tribunal decision at [25]-[32]
[13] At [79]
Tribunal decision
The Tribunal placed limited weight on the supporting evidence from the second applicant and the applicant’s father[14]. Based on the cumulative effect of its concerns about the totality of the evidence, the Tribunal was not satisfied that the applicant had provided truthful evidence[15]. The Tribunal noted that aspects of the applicant’s evidence were far-fetched[16], and that it had difficulty reconciling all of her claimed experiences[17]. The Tribunal also expressed concern about the applicant’s seven-year delay in applying for a protection visa[18], as well as inconsistencies between the applicant’s written and oral evidence[19]. The Tribunal did not find the applicant’s explanations for these issues sufficiently credible to overcome its concerns[20]. Further, the Tribunal recorded its concern that the applicant was unable to provide meaningful detail beyond what was in her written statement[21].
[14] At [84]
[15] At [85]
[16] At [86]
[17] At [87]-[89]
[18] At [90]
[19] At [91]
[20] At [92]
[21] At [93]
Based on the cumulative effect of these concerns, the Tribunal was not satisfied that the applicant’s claims were true[22] and, therefore, was not satisfied that there was a real chance or risk that the applicants would suffer serious or significant harm in China[23].
[22] At [94]
[23] At [95]-[96]
The present proceedings
These proceedings began with a show cause application filed on 31 January 2017. The applicants continue to rely upon that application. The grounds are summarised accurately in the Minister’s submissions as follows:
Ground 1: The Tribunal hearing was “unfair and purposeless.” The Tribunal Member was biased and had already made her decision before the hearing. The Tribunal Member did not genuinely consider the applicant’s evidence.
Ground 2: The Tribunal Member refused to properly consider the applicant’s special circumstances. It was extremely difficult and uncomfortable for the applicant to speak about her experiences in the presence of others, including the second applicant. The Tribunal Member’s doubts were unreasonable. During the hearing, the applicant pointed out that the Tribunal Member was being unfair.
Ground 3: The Tribunal Member failed to consider that small inconsistencies between the evidence of the first and second applicants were due to the second applicant having no knowledge of the applicant’s experiences prior to the hearing. The Tribunal Member failed to consider that the applicant had been reluctant to tell the second applicant about her experiences. The Tribunal Member ignored the applicant’s evidence that the second applicant was very nervous during the hearing.
Ground 4: The Tribunal Member failed to consider that the applicant’s delay in seeking protection was due to her unwillingness to be reminded of her past.
Ground 5: The Tribunal Member had already made her decision prior to the hearing.
In addition to the court book filed on 6 June 2017, I have before me, as evidence, the short affidavit filed by the applicant with the application.
Only the Minister prepared written submissions in advance of today’s show-cause hearing. The applicant and the second applicant attended in person, and I invited oral submissions from them.
For the most part, those submissions were made by the applicant. She placed stress on her submission that the Tribunal was biased against her. She produced a disc containing the sound recording of the Tribunal hearing and asked me to listen to it. I noted from the court book that the Tribunal hearing ran for approximately three hours and invited her to identify whether any particular parts of the hearing were of concern to her. She insisted that the whole hearing was relevant, but when pressed, told me that the biased attitude of the Tribunal member was evident from the start.
The Tribunal member was, in the applicant’s submission, in a rush to complete the hearing and came to the hearing with pre-judgement. I agreed to listen to a portion of the sound recording and the first 30 minutes was played in Court. That correlated exactly to [43]-[50] of the Tribunal decision. There was nothing in that portion of the sound recording which suggested, in any way, an issue of pre-judgement or bias. The applicant then contended that there was no problem at the beginning of the hearing, but the problem became evident later.
I adjourned while court staff advanced the sound recording to what seemed to me to be the most likely source of any problem, being that part of the hearing covered by the Tribunal at [68]-[71]. That part of the sound recording was played and, again, correlated exactly to those paragraphs. While the Tribunal did not give a verbatim account of the Tribunal hearing, the record in the Tribunal’s reasons is close to a verbatim account. That part of the sound recording disclosed that the applicant became distressed when she was pressed by the Tribunal on the improbability of her tormentor still wishing to pursue her after her lengthy absence from China.
The issue of bias was raised by the applicant at that time and responded to by the Tribunal precisely as is indicated at [70] and [71] of the Tribunal’s reasons. The Tribunal member’s demeanour was patient and courteous. The sound recording adds nothing to the written record of the Tribunal hearing. I did not receive it as evidence for that reason. There was nothing in the written material to support the contention of bias. The issue, having been raised by the applicant, was dealt with specifically by the Tribunal in its reasons at [81]-[83]. I see nothing wrong in the Tribunal’s approach to that issue.
It is plain that the Tribunal was unwilling to accept the essential details of the applicant’s claims. The applicant struggles to accept that disbelief. The applicant’s submissions, however, do not rise above strenuous disagreement with the Tribunal’s reasons. In that, she was supported by short oral submissions made by the second applicant.
In other respects, I agree with the Minister’s submissions addressing the grounds of review.
The primary allegation in Grounds 1, 2 and 5 is one of bias. Flowing from this allegation are contentions that the Tribunal refused to properly consider, and unreasonably doubted the veracity of, the applicant’s claims and evidence. In the decision record, the Tribunal noted that at two points during the hearing, the applicant suggested that the Tribunal was failing to assess her claims with an open mind[24]. The Tribunal observed that on both occasions, the allegations were made when the Tribunal put to the applicant, and invited her comment on, issues arising from her evidence and the criteria for the visa[25].
[24] At [68], [71], [82]
[25] At [82]
The applicant has shown no conduct on the part of the Tribunal member which would indicate that the member had pre-judged the application or was in any way biased[26]. The decision record indicates that the applicant was provided with an opportunity to give evidence and present arguments at the hearing. In so doing, the Tribunal member conducted the hearing in line with the requirements under s.425 of the Migration Act 1958 (Cth). The material before the Court provides no foundation for a claim that the Tribunal member approached the matter with a closed mind or did not conduct the review in good faith. Insofar as the applicant alleges that the Tribunal member’s pre-existing state of mind hindered the member in undertaking a proper evaluation of the relevant material, such an allegation is unsupported by the material[27]. The decision record indicates that the Tribunal considered the applicant’s claims and evidence, and its findings were open to it on the material before it and for the reasons it gave[28]. The applicant’s description of the Tribunal’s reasoning as being “unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it[29].
[26] SBBS v Minister for Immigration [2002] FCAFC 361; (2002) 194 ALR 749 at [44]; Minister for Immigration v SZNPG (2010) 115 ALD 303 at [18]
[27] Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]
[28] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
[29] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
In Ground 2, the applicant has also expressed difficulty in speaking about her claims, including in the presence of the second applicant. In the decision record, the Tribunal noted the submission made by the applicant’s representative at the conclusion of the hearing that sensitive claims made by the applicant had not previously been disclosed to the second applicant[30]. The Tribunal considered that had there been any concern about the applicant giving evidence in the presence of the second applicant, it would have been appropriate and helpful for the applicant or her representative to alert the Tribunal to the issue beforehand. The Tribunal noted that the applicants made a combined application to the Tribunal in respect of a combined visa application in which the second applicant relied on the applicant’s claims. The Tribunal considered that the applicant did not assert, when asked directly, that she had been disadvantaged by having the second applicant present during her evidence, and did not take up the Tribunal’s offer to take evidence from her separately[31]. In circumstances where the Tribunal offered to take evidence from the applicant separately and she declined, it cannot be said that the Tribunal failed to provide a “real and meaningful hearing” or otherwise denied the applicant procedural fairness.
[30] At [80], [83]
[31] At [83]
In essence, Ground 3 may be read as a contention that the manner in which the Tribunal dealt with the evidence of the second applicant and any inconsistencies between the evidence of the first and second applicants was legally unreasonable because the Tribunal failed to have regard to the reasons for the second applicant’s limited knowledge of the applicant’s experiences and to the second applicant’s nervousness when giving evidence. This ground cannot succeed. The Tribunal only made one finding that could be said to have some relevance to this ground: the Tribunal recorded that, while the second applicant’s oral evidence, and her father’s letter, supported the applicant’s claims, it placed limited weight on the supporting evidence from the second applicant and the applicant’s father “due to their close familial relationships and interests in supporting the application”[32]. Thus, the Tribunal’s reasons do not rely on any inconsistency between the evidence of the applicant and the second applicant.
[32] At [84]
For completeness, it may be noted that in considering the submission of the applicant’s representative that sensitive claims made by the applicant had not previously been disclosed to the second applicant, the Tribunal observed that the second applicant’s evidence suggested that he became aware of the applicant’s claims when the visa application was made[33]. This observation was made in the context of the Tribunal’s comments about the conduct of the hearing and cannot be said to have had any material bearing on the Tribunal’s adverse findings in relation to the applicant’s claims. This is so in circumstances where those adverse findings were based on, amongst other things, inconsistencies in the applicant’s own evidence. The errors asserted in Ground 3 do not arise.
[33] At [83]
Insofar as Ground 4 takes issue with the Tribunal taking delay into account as a relevant factor when assessing the applicant’s fear of harm and credibility, it was open to the Tribunal to do so provided that the delay was not treated as concluding the question in relation to those matters[34]. As set out above, the Tribunal’s findings in relation to the applicant’s claims were based on the cumulative effect of its concerns about the totality of the evidence, including concerns about inconsistencies in the applicant’s evidence. As such, Ground 4 cannot be made out.
[34] SZJYM v Minister for Immigration & Anor [2008] FMCA 652 at [61]
Conclusion
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed. The applicant expressed disagreement with my judgment, but did not otherwise address the issue of costs.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 September 2017
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