AQJ16 v Minister for Immigration

[2018] FCCA 719

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQJ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 719

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming delegate’s decision not to grant protection visas to applicants – application in this Court alleged bias and invoked merits review not available in this Court – no bias or jurisdictional error affecting Tribunal’s decision – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 91R

Freedom of Information Act 1982 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

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 Citizenship v Li & Anor (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

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

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

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

First Applicant: AQJ16

Second Applicant: AQK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 671 of 2016

Judgment of: Judge Dowdy

Hearing date: 7 March 2017

Date of Last Submission

and Reservation of Judgment:

4 April 2017

Delivered at: Sydney

Delivered on: 28 March 2018

REPRESENTATION

The Applicants appeared in person.

Counsel for the Respondents: Mr M. J. Smith of Counsel

Solicitors for the Respondents: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The affidavit of Ms Kate Elizabeth Gawidziel affirmed on 14 March 2017 is marked “Exhibit B”.

2. The Application filed in this Court on 23 March 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 671 of 2016

AQJ16

First Applicant

AQK16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant is a female citizen of China aged 62 years, having been born on 4 October 1955.

2. The Second Applicant is a sister of the First Applicant and is a citizen of China aged 54 years, having been born on 20 June 1963.

3. By Application filed in this Court on 23 March 2016 they (collectively the Applicants) seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 26 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 16 May 2014 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

1. The First Applicant arrived in Australia on 18 December 2011 on a Tourist (Subclass 676) visa (Tourist visa) which was granted on 14 December 2011 and was subject to Condition 8101 (a ‘no work’ condition) and Condition 8201 (a ‘maximum 3 months’ study’ condition). This visa expired on 18 March 2012 and she remained in Australia unlawfully until lodging an application for a Protection visa on 27 June 2013 together with the Second Applicant.

2. The Second Applicant arrived in Australia on 13 November 2011 on a Tourist visa which was granted on 4 November 2011 and was also subject to Conditions 8101 and 8201. This visa expired on 13 February 2012 and she remained in Australia unlawfully until lodging an application for a Protection visa on 27 June 2013 as a member of the same family unit as the First Applicant. On 9 August 2013 she lodged a Protection visa application in her own right.

Claims for Protection

1. In their combined Statement for Refugee Application translated into English on 16 June 2013 (Statement) forming part of their Protection visa applications the Applicants made the following claims:

   a)The Applicants purchased a street frontage retail property in Tianjin City, China, in 1990 known as 170 Hua’an Street, Heping District (retail property) and then opened a fruit shop business.

   b)In 1993, as a result of competition from two fruit shops, they changed their business into a beauty and hairdressing salon (beauty salon business).

   c)In around early 2007 the Applicants became aware that their retail property was to be demolished by the local authority and in March 2007 such demolition works formally started. The Applicants submitted requests to the Tianjian local authority to be given a replacement property, but such requests were ignored. They further petitioned for relief of this type but such action was also ignored. On 3 June 2008 the retail property and its belongings were seized and the retail property demolished.

   d)The Applicants travelled to the Beijing State Letter and Petition Office on 2 August 2008 to request that their belongings be returned and to be given another street fronting shop so that they could continue their beauty salon business. Their petition in this regard proved fruitless and they were told to return to Tianjin to await relief there. Having received no response by 11 March 2009 they returned to the Beijing Office. Immediately following this, the local Tianjin authority despatched the police to detain the Applicants, and they were so detained in Tianjin for ten days. In detention they suffered beating, starvation, were given poor food and treated inhumanely.

   e)The Applicants were released from detention on 22 March 2009 and continued their petition for the grant of land in compensation for the demolished retail property. The Tianjin local authority continued to ignore their requests and began to send thugs to assault and threaten them. Under these conditions they fled to Australia. The Tianjin local authority has captured the First Applicant’s husband and put him into a labour camp, and also made him contact the First Applicant and plead with her to return.

   f)They claim to be “just too scared to return to China”.

2. Supporting documents were lodged by the Applicants, which included a translation of the Certificate of Title of the retail property and Business Licence 12010100026091 (Business Licence) for the beauty salon business.

Relevant Criteria and Law Applicable to Protection Visa Applications

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. By letters dated 22 November 2013 sent to each of them at their most recent postal address the Delegate invited the Applicants to attend an interview on 17 December 2013 to discuss their Protection visa application. The Applicants did not appear on this date for the interview. On 6 January 2014 the Minster received back the letters sent to the Applicants, marked “Return to Sender”.

2. In her Decision Record of 16 May 2014 the Delegate recorded that the Applicants had not appeared before her and so she considered that she was unable to explore the veracity or content of the claims made by the Applicants in their Protection visa applications. The Delegate was unable to make any findings of fact on the claims the Applicants had made and she did not accept the claims and rejected them in their entirety.

3. Accordingly, the Delegate was not satisfied that Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and refused to grant a Protection visa to each of the Applicants.

Application to Tribunal

1. The Applicants applied to the Tribunal for a merits review of the decision of the Delegate on 17 June 2014 and attended a hearing before the Tribunal on 16 April 2015 in person to give evidence and present arguments, together with the assistance of an interpreter in the Mandarin and English languages.

2. Following the Tribunal hearing, the Applicants on 7 May 2015 made an application under the Freedom of Information Act 1982 (Cth) to obtain the originals of photographs and written evidence allegedly provided by them to the Department of the Minister (Department). On or about 28 May 2015 the Department responded with the advice that there were no photos in the Department’s file with respect to the Protection visa application, except for the passport photographs that had been stapled to the Protection visa application lodged on 27 June 2013. The evidence before me establishes that the only photographs provided with the Protection visa application or to the Department were the photographs of each of the Applicants appearing on their passports and found at Court Book pages 149 and 155.

3. The Applicants also submitted Statements to the Tribunal on 23 June 2015 from their mother and the husband of the First Applicant and seven photographs which appear at Court Book pages 160 – 161.

4. Then on 3 July 2015 the Tribunal sought the Applicants’ consent to seek further information from China regarding the Business Licence, and having received their consent DFAT conducted the enquiry on behalf of the Tribunal. The result was that DFAT reported to the Tribunal that its enquiry of the Chinese authorities did not confirm the authenticity of the Business Licence or the existence of the beauty salon business. The Tribunal then sent to the Applicants this information and an invitation pursuant to s.424A of the Act, inviting them to comment on this information. The Applicants availed themselves of this opportunity by their letter of 16 February 2016 in which they maintained that their claim of running a business in China was accurate.

Decision of Tribunal

1. In the result the Tribunal comprehensively rejected the claims of the Applicants. The Tribunal found that they were not credible witnesses and it was not satisfied that they had told the truth or that their evidence was plausible, persuasive or consistent. The Tribunal also found that neither the Certificate of Title for the retail property nor the Business Licence were genuine documents, and that the Business Licence was a bogus document. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant Protection visas to the Applicants.  

2. At [21] – [29] of its Decision Record the Tribunal set out the evidence which was before it, including evidence adduced by the Applicants after the hearing on 16 April 2015 and the results of the DFAT enquiry and the Applicant’s response to the subsequent s.424A invitation.

3. At [30] – [63] of its Decision Record the Tribunal dealt with the credibility of the Applicants’ claims with respect to nine matters which caused it concern:

   a)at [31] – [35] the Tribunal found inconsistencies in the Applicants’ claims concerning the retail property. The Applicants had claimed that the retail property was a one storey building made of brick, but the Certificate of Title which they had provided indicated that it was made of reinforced concrete and was on the first floor of a six storey building;    

   b)at [36] – [41] the Tribunal found inconsistencies in the Applicants’ claims in relation to being hairdressers and beauticians and their educational experience and qualifications;

   c)at [42] the Tribunal found that the Applicants had given inconsistent evidence about how and when they were notified of the proposed demolition of their retail property in China;

   d)at [43] – [44] the Tribunal  found that the Applicants had provided inconsistent information in relation to the outcome of their efforts to seek financial redress after the demolition of their retail property;  

   e)at [45] the Tribunal stated that it appeared that the Applicants had provided implausible evidence in relation to documentation claimed to have been lodged with the Chinese authorities claiming compensation;

   f)at [46] – [47] the Tribunal noted that it did not understand why the Applicants failed to move their business to their homes while pursuing compensation for their business, as they claimed that the business was their sole form of income;

   g)at [48] – [49] the Tribunal found that the Applicants had provided inconsistent evidence in relation to injuries claimed to have been suffered by them;

   h)at [50] – [58] the Tribunal found that the Applicants had significantly delayed leaving China after their claimed detention and further delayed in applying for protection after they had arrived in Australia. The Applicants had claimed that they were released from detention on 22 March 2009 (see [6(e)] above) but it was not until some 20 months later that the First Applicant first applied for a Chinese passport, which was issued on 2 April 2011. The Second Applicant had applied for a Chinese passport 18 months after release from her claimed detention, which passport issued on 23 November 2010. At [53] of its Decision Record the Tribunal found that the Applicants’ delay in obtaining Chinese passports pointed “to an unhurried and planned departure from China, rather than a genuine flight from persecution or harm”. The Tribunal then proceeded to point out at [54] that even after the issue of their Chinese passports that it was another year before the Second Applicant travelled to Australia (on either 13 or 23 November 2011; there is a discrepancy in the evidence) and seven months before the First Applicant arrived in Australia on 18 December 2011. Further, between the issue of their passports and their arrival in Australia the Applicants had travelled to Turkey and Egypt for nine days and then voluntarily returned to China. At [55] the Tribunal recorded that even after arriving in Australia in late 2011 it was another 18 months before the First Applicant applied for protection in Australia and 16 months elapsed after the expiry of the Second Applicant’s Tourist visa before she applied for protection; and

   i)at [59] – [63] the Tribunal dealt with the Business Licence, ultimately finding at [67] that it was a bogus document and that neither the Certificate of Title or the Business Licence were genuine documents.

4. At [64] – [66] the Tribunal considered the implied claim made by the Applicants’ response to the s.424A invitation that Chinese authorities would seek to do them harm on the basis of their having applied for Protection visas in Australia. At [66] the Tribunal found that the Applicants were not of adverse interest to anyone in China prior to their departure and did not accept that they would be perceived as failed asylum seekers, anti-government or otherwise be of any adverse interest to any authorities on their return to China.

5. At [70] the Tribunal summed up its rejection of the Applicant’s claims in the following terms:

   [70]… However, for the reasons outlined above, the Tribunal has formed the view that the applicants have not been truthful in their claims and that they totally lack credibility. When considered individually and cumulatively, the Tribunal's concerns in relation to the applicants' evidence, including false claims regarding operation of a hairdressing and beauty salon, the inconsistencies outlined above as well as their unpersuasive and implausible explanations for their delay in leaving China and then their delay in applying for protection once they had arrived in Australia, all cause the Tribunal to conclude that the events described by AQJ16 and AQK16 did not occur and that they have fabricated their claims with a view to a migration outcome. The Tribunal rejects the applicants' claims in their entirety.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicants in their Application of 23 March 2016 are as follows:

   1.The Tribual member finds our Business Licence provided to the Department and Tribunal with false information. The reeason is that they can’t find our business licence registered record in Tianjin City INDUSTRY & COMERCIAL BUREAU COMPER SISTEY RECORDS.

   2.We don’t know what happened to it. We think that at that earlier years, the China authorities just started to use computer system for business company and shop registration. It is possible for their making mistraks because there are thousants of companies and shops applying registration.

   3.Our business licence is true, otherwise our hairdressing & beauty salon could n’t be permitted for trading.

   4.The Tribunal has bias against us and failed to make his decision in accodance with the true fact and evidences provided as well as according to S91R of the Migration Act 1958, making jurisdictional error.

   (i.e. verbatim)  

Consideration of Grounds of Attack on Tribunal Decision in this Court

Grounds 1, 2 and 3

1. These Grounds seek to argue with the factual finding of the Tribunal to the effect that the Business Licence was not genuine. Factual findings are matters for the Tribunal and not this Court, which is not entitled to conduct a merits review of the factual findings of the Tribunal. In any event, in my view the finding of the Tribunal with respect to the Business Licence was legally reasonable and open to it and the finding did not lack an intelligible justification.

2. The Applicants gave consent to the Tribunal engaging DFAT to make enquiries in China in relation to the Business Licence. When the result of those enquiries were to hand the Tribunal gave clear particulars of the information resulting from them to the Applicants under s.424A of the Act and the Applicants were invited to comment or respond to that information. They availed themselves of that opportunity, but in the result the Tribunal found that the Business Licence was not genuine, rather finding it to be a bogus document.

3. In my view these Grounds fail to establish jurisdictional error.

Ground 4

1. This Ground alleges that the Tribunal was biased against the Applicants.

2. The first problem for the Applicants is that they did not tender a transcript of the Tribunal hearing of 16 April 2015, despite having consented on 15 April 2016 to an order in this Court which placed the onus upon them of obtaining such a transcript. Further, at the first directions hearing on that date I specifically advised the Applicants that because of their allegation of bias they would likely need to get a copy of the transcript of the Tribunal hearing and that the onus was upon them by force of the order to that effect.

1. Actual or apprehended bias are matters which 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 the 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] per Hayne, Kiefel and Bell JJ.

2. 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 [72] as follows:

   [72]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.

3. 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 Services 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.

4. The test for 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 at 437-438 [33].

5. 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 344-345. 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 v Nicholls (supra) at [32] .

6. In my opinion there is no basis for any claim by the Applicants that they have suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the Tribunal’s decision.

7. First, the face of the Tribunal’s Decision Record 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 & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].

8. Second, there is otherwise nothing in the evidence which lends any support at all to a finding that the Tribunal member favoured or was partial to the Minister, or appeared to be so.

9. Accordingly, the allegation of bias fails.

10. Insofar as this Ground also suggests that the Tribunal committed jurisdictional error by some failure with respect to s.91R of the Act, the fact of the matter is that s.91R had no application or relevance to the decision of the Tribunal. This is because the Tribunal rejected all of the Applicants’ claims in their entirety and found that they were of no adverse interest to anyone in China before their departure, or would be upon return, and that there was no real chance that they would be persecuted for any Refugees Convention reason if they returned to China immediately or in the reasonably foreseeable future.

11. Accordingly, Ground 4 fails to establish jurisdictional error.

Adjournment Application at Hearing

1. At the hearing in this Court the Applicants applied for an adjournment so that they could approach the Tribunal to recover photographs which they claimed that they had given to the Tribunal but were not in the Court Book.

2. I refused the adjournment application on the basis that the Applicants had enjoyed more than sufficient time to approach the Tribunal for that purpose and that it was not in the interests of justice that the hearing in this matter be further delayed.

3. However, in the circumstances I asked the Minster’s lawyers, who act for a model litigant, to check whether or not in fact the Court Book did contain all the photographs which had been before the Tribunal for the purposes of its decision.

4. I note in this regard that at [27] of its Decision Record the Tribunal had noted that the Applicants had claimed that they had sent some “photographs and additional evidence” to the Tribunal. The Tribunal noted that there was no such evidence in the file of the Department before the Tribunal and  noted further at [27] that it had subsequently obtained a full scanned copy of the file of the Department and had satisfied itself that no such additional documentation had ever been provided to the Department.

5. In the result, the affidavit of Ms Gawidziel (being marked Exhibit “B”) established that there were no photographs on the Tribunal file, other than for those photographs already reproduced in the Court Book filed in this proceeding and identified in [13] – [14] above.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 March 2018