AKE15 v Minister for Immigration

[2015] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKE15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2125

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – protection (class XA) visa – bias – whether the Tribunal had failed to bring an independent and impartial mind to the determination of the matter on its merits – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: AKE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 953 of 2015

Judgment of: Judge Street

Hearing date: 6 August 2015

Date of Last Submission: 6 August 2015

Delivered at: Sydney

Delivered on: 6 August 2015

REPRESENTATION

The applicant appeared in person

Solicitor for the first respondent:

Mr K Eskerie

Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 953 of 2015

AKE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 10 March 2015 affirming a decision not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia as the holder of a visitor visa subclass 600 and applied for protection on 12 February 2014. The grounds of the application were as follows:

   1. I am scared to return back to China, because there really exists the persecution targeted towards the petitioners in China. If I returned back to China, I would certainly be monitored by the staff from the Chinese governmental department due to my previous petition experience. Even I could be arrested and detained without any freedom or human rights in China.

   2. As to the application of my visitor visa, at that time, I was in a hurry to go abroad to be away from the persecution in China, so I let one agency help me for the visa application. I did not mow that the agency provided misleading information regarding my visitor visa application. Also from my perspective, being a driver in chicken farm belongs to the worker industry.

   3. As to my former bungalow, it used to be one room which covered an area of more than 10 square meters, later I added two more rooms which together covered an area of around 30 square meters

   4. As to my experience of being tortured and detained, I was really beaten to be unconscious at that time, but due to the fact of being abused physically, I went to Australia to escape the further persecution. Also this experience is a sad memory, so I try to forget it.  Even I knew what happened at that time, I am not really willing to remember and talk about it in details.

   5. I hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me.

2. On 7 May 2015 the Court made orders for the applicant to file an amended application, further affidavit evidence and submissions.  No amended application was filed, although there was filed an affidavit annexing a death certificate which the applicant indicated was that of his son.  It appears that the applicant’s son passed away after the decision of the Tribunal and he was cremated on 6 July 2015.  This Court has limited jurisdiction and can only interfere with a decision of the Tribunal if it is satisfied that the Tribunal has engaged in a jurisdictional error.

3. Jurisdictional error requires a finding that the Tribunal has failed to properly conduct its review according to the statutory regime or has denied the applicant procedural fairness.  In this case, the Tribunal made adverse findings of credit in relation to the applicant.  Those adverse findings of credit were the subject of identified and reasoned inconsistencies.  Those inconsistencies included differences between what the applicant had asserted in the statement annexed to the application for protection compared to the evidence that was given before the Tribunal.

4. There was no claim for a fear of persecution based on the applicant’s son’s death as that event had not occurred and an event after the decision of the Tribunal cannot give rise to any jurisdictional error.  The obligation of review upon the Tribunal applies to the material before the Tribunal.  Whilst the Court appreciates the gravity for the applicant of the passing of his son, because this occurred after the decision of the Tribunal, it is not a matter that gives rise to any basis for a finding of jurisdictional error. 

5. The applicant also advanced that he was in fact telling the truth and that he had the impression that the Tribunal had already made up its mind in relation to the determination of his application for review.  The applicant said that he was interrupted but acknowledged that those interruptions were the Tribunal member asking questions about the applicant’s claims and evidence.  The first respondent submitted that this was a case where there was no clear allegation of bias and the principles require bias to be clearly alleged and properly proved.

6. The first respondent submitted that the assertion of bias had not been properly proved and that there was no evidence to support any criticisms as to the conduct of the review by the Tribunal and that the assertions from the bar table of interruption and the alleged impression were tentative criticisms that failed to prove the allegation of bias.  The first respondent submitted that the adverse findings were not a basis upon which bias could be made out. 

7. The first respondent submitted that the questioning by the Tribunal of the applicant in relation to his claims and evidence as well as the ultimate adverse findings the subject of reasons in the decision was not a basis upon which a fair-minded person might reasonably apprehend that the Tribunal might not have brought an independent and impartial mind to the determination of the matter on its merits.  I accept the first respondent’s submissions that bias has not been squarely alleged and properly proved. 

8. I accept the first respondent’s submissions that the conduct identified by the applicant and the adverse findings are not a basis upon which a fair-minded person might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  In relation to the grounds of the application, the first respondent submitted that the grounds were of such impermissible challenge to the merits of the review. 

9. I accept the first respondent’s submission that the grounds failed to identify any jurisdictional error by the Tribunal and seek to cavil with the adverse findings of credit by the Tribunal.  Relevantly, the Tribunal found the applicant not to be a truthful or credible witness.  The Tribunal found that there were numerous and significant inconsistencies between the information the applicant provided in his personal statement and the oral evidence he provided at hearing. 

10. The Tribunal set out those inconsistencies and relevantly found the assertion that the applicant was detained and tortured by the police had been fabricated.  It was in that context that the Tribunal found that parts of the applicant’s evidence were vague and unpersuasive and that his claims had been fabricated.  Relevantly, the Tribunal found:

    35. …The Tribunal considers that the applicant’s evidence at the hearing as to where he had lived in China indicates he was not a truthful witness.

    36. … When I put this information to the applicant pursuant to s.424AA he claimed that he had provided false information to the Department because he wanted to get his Visitor visa but the information he had provided to the Tribunal was true. The Tribunal considers that the applicant’s evidence in relation to his employment in China further indicates he is not a truthful witness. 

    …

    38. For all of the above reasons the Tribunal is not satisfied that the applicant has given a truthful account as to why he left China.  The Tribunal does not accept that the applicant was forced to leave his home in June 2000 and was paid inadequate compensation. The Tribunal does not accept that the applicant went to the Complaints Office in Chengdu in August 2000, August 2008 or July 2013. It follows the Tribunal does not accept that the applicant was detained and tortured by the police. The Tribunal considers that the applicant has fabricated these claims in order to obtain a migration outcome.

    39. The Tribunal is not satisfied therefore that there is a real chance that the applicant will face harm upon his return to China for reasons of his political opinion, imputed political opinion or for any other Convention reason. Accordingly the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to China now or in the reasonably foreseeable future.

    40. The Tribunal has also considered the applicant’s claims having regard to the Complementary Protection provision. The Tribunal has not accepted the applicant’s claims that he was forced from his home paid inadequate compensation and went to the Complaints office in Chengdu to petition. The Tribunal has not accepted the applicant was tortured or detained by the police.  The Tribunal is not satisfied therefore, that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if he is removed from Australia to China.  Accordingly, having regard to all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

11. It was in those circumstances the finding concluded that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(a) and 36(2)(aa) had not been satisfied. Those adverse findings by the Tribunal were clearly open on the material before the Tribunal and accordingly the application fails to disclose any jurisdictional error. It was a matter for the Tribunal to assess the credibility of the applicant and this was a case where the applicant had not attended before the delegate in relation to his claims. The delegate identified a combination of matters that might otherwise have been discussed with the applicant at that interview before the delegate. It was in the absence of the applicant’s attendance at that interview that the delegate was not able to find the applicant was a person to whom Australia owed a protection obligation.

12. The applicant appeared before the Tribunal on 4 March 2015 to give evidence and present arguments and he was assisted by an interpreter.  One of the matters which was of key significant in relation to the applicant’s application was his assertion in his original statement that in July of 2013 he went to the complaints office in (X). It was alleged the applicant attended because he had not had a reply to a complaint he had lodged in 2000. The applicant asserted that when waiting at the bus stop two police came up to him, put him in a police car and took him to a police station and allegedly raised with him the petition he had made and whether he would pursue that petition. 

13. The applicant alleged that he conveyed to the police that he would continue to pursue the petition and that he would return to the complaints bureau and pursue the petition.  The Tribunal found as follows:

    34. In his personal statement the applicant claimed that in July 2013 after he had been to the Complaints Office he was taken to the police station and beaten and tortured. He claimed he was detained for 24 hours. At the hearing when I asked the applicant when he was detained and tortured he claimed he couldn’t remember. He then claimed it was August. The Tribunal considers that if the applicant had been tortured and detained by the police he would remember when this had happened given he had no difficulty recalling the details of the torture and claimed it was because of  this treatment that he had fled China.

14. This discloses a rational basis for the Tribunal’s adverse credit finding. I am satisfied that the evidence of credit findings were open to the Tribunal and that the application disclosed no jurisdictional error.  The application is dismissed.

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

Associate:  

Date:  11 August 2015