Akr16 v Minister for Immigration

[2017] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKR16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1507

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to bias and failing to take proper account of protection claims – no jurisdictional error – Tribunal properly considered all claims and not affected by any form of bias – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

Craig v South Australia (1995) 184 CLR 163
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34

Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: AKR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 420 of 2016

Judgment of: Judge Dowdy

Hearing date: 28 July 2016

Delivered at: Sydney

Delivered on: 7 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr K Eskerie

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 26 February 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 420 of 2016

AKR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Indonesia of Chinese ethnicity aged 68 years, having been born on 7 April 1949.

2. By Application filed in this Court on 26 February 2016 he seeks to quash and have redetermined in accordance with law a decision of the Second Respondent, the Administrative Appeals Tribunal (then named the Refugee Review Tribunal) (Tribunal) dated 7 May 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 12 May 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

3. The Applicant did not comply with s.477(1) of the Migration Act 1958 (Cth) (Act) which required the filing of his Application in this Court within 35 days of the Tribunal’s decision. He needs an extension of time under s.477(2) of 260 days or some 8½ months.

Background

1. The Applicant arrived in Australia on 2 July 1995 from Indonesia on a Subclass 676 Tourist visa and a passport issued to him by the Government of the Republic of Indonesia. He then applied for a Protection visa on 5 July 1996, which was refused by a Delegate on 10 February 1997. That decision was upheld on review by the Tribunal on 19 December 1997, which applied the Refugees Convention criteria.

2. Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicant on 20 September 2013 again applied for a Protection visa.

Claims for Protection

1. The Applicant claimed to have grown up in Indonesia with a brother and sister and to have attended a Chinese school and attained grade 1 in junior high school. He claimed to be an ethnic Chinese and to fear non-Chinese Indonesians. Because he is Chinese, he would not be protected by the Indonesian authorities. He further claimed that at the end of 1993, he and a friend in Indonesia rented a small shop and sold cigarettes, food and household goods. On one occasion there was an altercation at the shop with a young man whose father was a junior military officer and whose brother was a policeman, in which the Applicant was assaulted by the young man but in turn took a stick to him and hit him on the head, resulting in the young man passing out. The Applicant claimed that he fled the area of the shop and went to another area in Indonesia and that he feared that if he returned to Indonesia, he would not be protected by the Indonesian authorities because he was Chinese, and the young man’s father and brother would search him out, take him to the forest and kill him.

Grounds and Criteria for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 5 May 2014.

2. The Delegate only had the power to consider the Protection visa application on the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the Applicant’s Protection visa application on both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicant under either criteria and refused to grant the Applicant a Protection visa. He found that the Indonesian government officially promoted racial and ethnic tolerance and that ethnic Chinese accounted for approximately 3% of the total population of Indonesia and played a major role in the economy of the country with an increasing participation in politics and that the relevant country information did not support a finding that the Applicant would face a real chance of persecution from the Indonesian authorities due to his Chinese ethnicity.

3. Further, the Delegate found that the Indonesian authorities took reasonable measures to protect the lives and safety of their citizens, including appropriate criminal law and the provision of a reasonably effective and impartial police and justice system. The Delegate was not satisfied either that the Applicant would face a real chance of being persecuted for a Refugees Convention reason or that there was a real risk that the Applicant would suffer significant harm if he returned to Indonesia under the complementary protection criterion.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 3 June 2014 for review of the Delegate’s decision. On 17 March 2015 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.

2. The Tribunal correctly proceeded on the basis that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion: SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113]-[114] per Mortimer J.

3. At [17]-[20] of its Decision Record the Tribunal recited that it had confirmed with the Applicant that his claims for protection were that he would be significantly harmed in Indonesia because of his Chinese ethnicity and by the relatives of the young man whom he had injured in a fight and also because he had a serious illness. At [20] the Tribunal noted that the Applicant said that he had health issues and needed surgery.

4. The Tribunal further recorded that the Applicant claimed that because he was Chinese he did not have the power to protect himself in Indonesia, that the Indonesian authorities would not protect him and that he had a fear for the future because of what had happened in the past in Indonesia.

5. At [28] of the Decision Record, the Tribunal noted that country information indicated that there were more than 8 million ethnic Chinese citizens in Indonesia and that there had been no significant violence involving Chinese in Indonesia since 1998.

6. In the result, the Tribunal accepted country information which indicated that the Indonesian authorities took reasonable measures to protect the lives and safety of their citizens. It considered that there was nothing before the Tribunal which indicated that the Indonesian authorities would withhold protection from the Applicant on the grounds of his Chinese ethnicity and accordingly it was not satisfied that there was a real risk that the Applicant would suffer significant harm because of his Chinese ethnicity.

7. Further, whilst the Tribunal accepted that the Applicant had been consistent in his claims concerning the incident relating to his injury of the young man, it did not accept that his fear was well-founded. Rather, the Tribunal pointed out at [51] of its Decision Record that the incident occurred 20 years ago and the claim that the young man and his family would still pursue the Applicant was far-fetched and implausible. The Tribunal was of the view that there was nothing indicating that the Indonesian authorities would withhold protection from the Applicant for any reason. It noted that the Applicant had a heart condition requiring surgery, which was expected to be performed by early May 2015, but that the health position of the Applicant did not satisfy the Tribunal that there was a real risk that he would suffer significant harm for that reason or from any need to access medication in Indonesia. Finally the Tribunal found at [66] of its Decision Record that there was nothing to suggest that the Applicant would be denied the ability to subsist in Indonesia.

8. Accordingly, at [70]-[71] the Tribunal stated that it was not satisfied that the Applicant was a person to whom Australia owed complementary protection obligations and it affirmed the decision of the Delegate not to grant the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The substantive Grounds of the Application filed in this Court are as follows:

   1. The AAT Member was biased;

   2. The Tribunal failed to consider many vital integers of my case;

   3. The Tribunal failed to consider many vital evidence (sic) that are relevant to my case;

   4. The Tribunal deprived me of procedural fairness;

   5.      The Member has failed to do his duty.

Adjournment Application

1. At the commencement of the hearing, the Applicant appeared in person and applied for an adjournment on the basis of an affidavit sworn by a Mr Hossain on 28 July 2016, whom I allowed to appear as the McKenzie friend of the Applicant. That affidavit annexed a copy of the decision of the Refugee Review Tribunal of 19 December 1997 referred to in [4] above, which upheld the Delegate’s refusal to grant a Protection visa application and applied only the Refugee Convention criterion. The Applicant also relied on Written Submissions dated 28 July 2016 which sought further time to amend and particularise his Application and “make articulate submissions”.

2. In the result I refused the adjournment application. At the First Court Date on 18 March 2016 the matter had been set down for hearing and the Applicant had appeared in person. There had been ample time for him to obtain or seek to obtain legal representation and legal advice. Nothing in the affidavit of Mr Hossain was persuasive of any need for an adjournment. The adjournment application was made very late and had not been foreshadowed to either the Court or to the First Respondent’s lawyer prior to it being made. Further, there would be a waste of legal costs which would probably not be recoverable by the First Respondent if I had granted the adjournment. Finally, it would have been necessary to grant an adjournment for a lengthy period of time, of approximately a year, or otherwise displace another hearing in my docket during that period. I did not consider in the circumstances that it was in the interests of justice that there should be any adjournment.

3. I further note that I refused the Applicant leave to read and rely upon the affidavit of Mr Hossain because it seemed to be irrelevant to any issue which I had to consider in the case and also because of its late service on Mr Eskerie at the hearing, who appeared for the First Respondent.

Extension of Time

1. As earlier recorded at [3] above, the Applicant needs an extension of time under s.477(2) of the Act of 260 days. The First Respondent opposes the application for an extension of time on the basis that the substantive Application is without merit and the extent of the delay is significant.

2. The Grounds for the extension are:

   1.  I am barely literate;

   2.  I have been suffering from major health issues;

   3.  I did not have access to any social benefit;

   4.  I could not work;

   5.  I cannot afford a lawyer.

3. The Applicant did not tender any evidence in support of these Grounds. However, in the result I consider that it is in the interests of the administration of justice that an extension be granted to the Applicant. The necessary period of time for the extension is significant and the explanation for delay is, to say the least, not impressive. However, the Applicant has lived in Australia for many years and is now 68 years of age. I have come to the view that it is necessary in the interests of the administration of justice that he be given the opportunity to argue his substantive Grounds and have this Court give a reasoned consideration to those Grounds and retain his right of appeal to the Federal Court.

Consideration

Grounds 1, 4 and 5

1. These Grounds are completely unparticularised. They are of a serious nature but there is no evidence at all that the Tribunal member was biased, deprived the Applicant of procedural fairness or “failed to do his duty”. The Applicant has not tendered any transcript of the hearing before the Tribunal member which would have a tendency to establish any form of bias.

2. Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48].

Actual Bias

1. I infer that the only form of actual bias alleged by the Applicant in his second ground is actual bias in the form of prejudgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

2. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:

   97.        The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

3. The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437-438 [33].

Apprehended Bias

1. On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 334-345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners at 437 [32].

Consideration of Claims of Bias and Procedural Fairness

1. In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.

2. The Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

3. There is also no evidence of procedural unfairness or breach of the rules of natural justice. The Applicant has failed to make out these Grounds.

Grounds 2 and 3

1. These Grounds are also completely unparticularised and the “vital integers” and “vital evidence” which it is alleged that the Tribunal failed to consider have not been identified by the Applicant either in writing or orally at the hearing.

2. Of course, jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]. Jurisdictional error can also result from an administrative decision maker such as the Tribunal identifying a wrong issue or asking a wrong question: Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

1. However, in my view the Tribunal appropriately considered the claims made by the Applicant. At [17]-[20] the Tribunal recorded that it had specifically confirmed with the Applicant the totality of his claims for protection and its Decision Record subsequently sets out the Tribunal’s consideration of the Applicant’s claims. I cannot see that it disregarded or overlooked those claims or inappropriately dealt with them in such a way as to commit jurisdictional error or at all.

2. Furthermore, the Tribunal did not fail to take into account a relevant, cogent or important piece of evidence: Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [47] per Buchanan, Perram and Rangiah JJ.

3. Accordingly, this Ground also is not made out.

Conclusion

1. The Applicant has failed to establish that the Tribunal’s decision is affected by jurisdictional error. The Application filed in this Court on 26 February 2016 is to be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:         7 July 2017