ASI17 v Minister for Immigration

[2018] FCCA 2734

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2734

Catchwords:
MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in asking irrelevant questions – apprehension of bias – whether the Tribunal erred in ignoring relevant facts – whether the Tribunal erred in misinterpreting the meaning of “well founded” fear – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 414, 417, 425, 438, pt.7

Other materials cited:
DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015

Cases cited:

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration & Border Protection v CQZ15 (2017) 253 FCR 1
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305

MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235

Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495

Applicant: ASI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 503 of 2017

Judgment of: Judge Smith

Hearing date: 16 August 2018

Date of Last Submission: 16 August 2018

Delivered at: Sydney

Delivered on: 16 August 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr T Galvin, Minter Ellison

ORDERS

1. On the grounds specified in sub-s.88G(1)(c) of the Federal Circuit Court of Australia Act 1999 (Cth) it is prohibited for a period of 50 years from 16 August 2018 to publish or to disclose other than to parties of these proceedings or to their legal representatives:

   (a)any of the information contained in the folios 159-162 in exhibit JLS-1;

   (b)the names, other than the name of the applicant, which appear in folios 164-165 in exhibit JLS-1.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 503 of 2017

ASI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

As Corrected

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 31 January 2017.  The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant and his daughter a protection visa.  The applicant’s daughter is not a party to these proceedings as she returned to China some time ago, and well before the Tribunal’s decision. 

2. In order to succeed in these proceedings, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error.  Generically stated, that means that he must show that the Tribunal made an error of sufficient gravity to take its exercise of power outside the scope of its authority.  In order to understand his arguments and the grounds of his application, it is necessary to set out in the first place some background to the applicant’s claims and then to examine the Tribunal’s reasons for its decision.

3. The applicant is a citizen of China who arrived in Australia on 8 October 1997. He first lodged an application for a protection visa on 7 November 1997. I will return to the claims that were the basis of that application later in these reasons. A delegate of the Minister for Immigration made a decision on 16 April 1998 to refuse to grant the applicant a protection visa and the applicant’s application to what was then the Refugee Review Tribunal (RRT) was unsuccessful. As will be seen, the applicant subsequently made two applications to various Ministers for Immigration for an exercise of the non-compellable power under s.417 of the Migration Act 1958 (Cth).

4. In March 2012, the Act was changed to include a further criterion for the grant of a protection visa.  That is, under sub-s.36(2)(aa), often referred to as the complementary protection criteria.  While it was understood at the time to be the case that an applicant who had previously made an application for a protection visa was prevented from making a further valid application, the effect of a decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235 was that an applicant, such as this applicant, who had previously made an application based upon the criteria in sub.s-36(2)(a), often called the refugee criterion, was not prevented from making a subsequent application seeking to satisfy sub-s.36(2)(aa) of the complementary protection criterion.

5. Accordingly, when the applicant lodged a further application for a protection visa on 27 May 2014, it was valid insofar as he sought to satisfy the complementary protection criterion.  At this point, it is convenient to note the claims made both in support of that application and the applicant’s first protection visa application.  They are summarised in [1] and [2] of the Tribunal’s decision, as set out below:

   1.  The applicants are a father and daughter. They are both citizens of China. They come from the city of Lanzhou in Gansu Province. [The applicant], the father, first applied for a protection visa on 11 November 1997. In a statement accompanying that application he said that he had been persecuted and discriminated against by the Chinese Communist Party solely on the basis of his family background but that he also feared being persecuted because of his religious activities and his involvement in the ‘6.4 pro-democracy movement’ (a reference to the pro-democracy movement which culminated in Tiananmen Square on 4 June 1989). At a hearing before the Refugee Review Tribunal on 6 January 1999 [the applicant] said that his main concern about returning to China related to an affair he had been having with the wife of a military official named Chai as a result of which he had been charged with violating China’s Military Marriage Law.

   2.  In a statement accompanying his current application lodged on 27 May 2014 [the applicant] said that he did not wish to return to China because he and some other church members had had some conflicts with local police officers during the demolition of a church. He referred to the fact that he had been baptised in Australia in 1999. He said that around three years previously he had sent some magazines and books about the life of Christians in Australia to his wife. He said that she had shown these materials to her friend and as a result his home had been searched. He said that the officers had defined his materials as anti-communism publications and had confiscated them and burned them. He said that they had arrested his wife and had detained her for 15 days and they had warned her that she would be taken to a labour camp for reformation if she continued to preach. He said that they had added that they suspected that he was a terrorist because he had sent her these materials. [The applicant’s] daughter came to Australia as a student in April 2012. She filled in Part D of the application form, indicating that she did not have her own claims for protection.

   [identifying information omitted]

6. On 26 February 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.

7. The applicant then applied to the RRT for review of the delegate’s decision, but later that year the functions of the RRT were assumed by the Administrative Appeals Tribunal, and it is for that reason that the Administrative Appeals Tribunal continued with a review of the delegate’s decision.  The applicant was invited to attend a hearing and did attend a hearing conducted on 2 November 2016.  He gave evidence at that hearing, as did two witnesses on his behalf.  The Tribunal made its decision on 31 January 2017. 

8. For a number of reasons, the Tribunal found that the applicant was not telling the truth in significant parts of his evidence.  The reasons for the Tribunal’s conclusion in that respect, and its ultimate decision, were accurately summarised in the first respondent’s submissions at [13] to [17], which I set out below:

   13.    For the following reasons, the Tribunal did not accept that the applicant was telling the truth in significant parts of his evidence (at [32]):

   (a)     while he claimed in his first protection visa application that his father was classified as an anti-revolutionary and he himself had participated in a pro-democracy unit, in the second protection visa application he provided details of the qualifications and employment he was able to obtain in China prior to travelling to Australia (at [32]);

   (b)     in the second protection visa application, he said that he had no difficulty obtaining a passport and that he left China legally; however at the hearing he said that was not correct and that he had relied on someone on the ‘inside’ to help him get his passport (at [32]);

   (c) there was no evidence to support the claims made in his first protection visa application that 200 Christians had been arrested in 1994 and that a specific Christian church was demolished, and instead there was evidence of significant numbers of Christians in certain provinces (at [33]);

   (d)     it was difficult to reconcile the movements of the applicant’s daughter freely returning to China from Australia on a number of occasions with the applicant’s claim that his wife had been detained for 15 days and warned that she would be taken to a labour camp after Christian-related materials he had sent to her from Australia had been discovered (at [36]); and

   (e) the Tribunal did not accept that the applicant’s daughter had been unable to return to Australia because the family home is regarded as a house church, because she took pamphlets from his church here back to China, or because she, the applicant or the applicant’s wife have attracted the adverse attention of the authorities (at [37]).

   14.    Accordingly, the Tribunal did not accept that the applicant had ever been of any interest to the Chinese authorities, that there were problems preventing him from returning to China, that his father was classified as an anti-revolutionary, that he participated in a pro-democracy movement, that he had conflicts with local police, that he used connections to obtain his passport, that he will be regarded as an anti-revolutionary, that he was liable to imprisonment or that his ‘escape from China’ will be treated as an act of treason (at [38]). The Tribunal also did not accept that the applicant was charged with an offence under China’s Military Marriage Law as a result of an affair and gave greater weight to the issues with his evidence than the summons/subpoena produced to support that claim (at [39]). Further, and in the alternative, that law is one of general application and any risk of trial and a prison sentence is a risk that applies to the population of China generally (at [39]).

   15.    The Tribunal also did not accept that the review applicant will experience significant harm in China on account of his medical conditions, despite the likelihood of exacerbation (at [40]).

   16.    The Tribunal accepted the applicant’s claimed baptism and religious practice in Australia; however, the country information indicated that the Chinese government allows a lot of freedom to house churches in China and there was no evidence of problems in his province (at [41]). Accordingly, the Tribunal did not accept that he faced a real risk of significant harm as result of his involvement in the underground or unregistered church in his province (at [41]). While he provides valuable support to his sister and her family in Australia, this was not the question to be addressed for the purposes of the review (at [42]).

   17.    The Tribunal therefore concluded that the applicant did not satisfy the complementary protection criterion (at [43]).

   (Emphasis in original)

9. There are eight grounds in the application relied upon by the applicant.  Before dealing with those, I will deal with the applicant’s submissions made at the hearing before me today.

10. The applicant claimed, in effect, that the Tribunal was wrong not to believe his claims because he was well educated in China and that if what he had claimed were not true, he would not have lived here doing the work that he has been doing for over 20 years.  In a written submission handed up at the hearing, the applicant repeated that claim and pointed to recent events referred to as “b2b” events, which he explained displayed the Chinese government’s lack of concern for human rights.

11. Those submissions would, if accepted, support the applicant’s claim to qualify for a protection visa. However, that is not a question that is reserved for the Court. That is a question that reposed in the Minister in the first instances pursuant to s.65 of the Act and, on review of the Minister’s decision, in the Tribunal pursuant to s.414 of the Act. A short way of putting the same thing is that it is not open to the Court to enter into the merits of the Tribunal’s findings or mere disagreement with the Tribunal’s findings does not justify the conclusion that there was any jurisdictional error affecting the Tribunal’s decision.

12. For those reasons, I must set to one side the submissions made by the applicant orally and in his written submission and I return to the grounds of the application. 

13. The first ground claims that the Minister did not give the applicant an opportunity to attend an interview.  There are two problems with that.  First, this Court does not have the power to review the decision of the Minister or the delegate in the refusal of an application for a protection visa.  The second is that even accepting that there were such an error in the delegate’s decision; that could not affect the Tribunal’s authority to decide because the Tribunal’s decision properly made, will in effect, cure any defect in the delegate’s decision: Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495.

14. The second ground is that the Tribunal spent most of its time at the hearing asking the applicant something irrelevant to his claims.  The only evidence of what occurred at the hearing conducted by the Tribunal on 2 November 2016 is found in its statement of reasons, in particular, at [15] - [30].

15. Any reading of those reasons does not support the applicant’s contention.  For example, at [16] the Tribunal notes that it asked the applicant “what he feared would happen to him if he returned to China now”.  That question went to the very heart of the applicant’s application.  In subsequent paragraphs, including [18], [19], [20] and [21], the Tribunal reveals that it asked the applicant questions about claims made in support of his first visa application. 

16. Once again, those claims could be, if accepted, critical to the Tribunal’s decision: that it was a relevant process for the Tribunal to ask questions about them, not only to enable it to determine whether or not to accept them, but also to enable the applicant to have an opportunity to address its concerns about the impact of those earlier claims or his subsequent claims. That was, in the words of s.425, an issue that arose in relation to a review of the delegate’s decision. For those reasons, the second ground must be rejected.

17. The third ground is that the Tribunal was biased.  That is supported by the contention that the Tribunal asked many questions about the applicant’s credibility but did not assess the real risk that the applicant would be facing if he returned to China.  An allegation of bias is a serious one.  What must be established where, as here, the allegation is based upon prejudgement, is that the Tribunal has so prejudged the matter that it is unable or unwilling to change its mind, regardless of the evidence before it.

18. The determination of whether such bias appears must be determined against the context in which the relevant conduct impugned by the applicant took place. Here, the first element is the questioning about credibility at the hearing. While it may appear to the applicant that questioning about credibility shows that the Tribunal has a preconceived idea about that issue, it must be understood that it is part of the role of the Tribunal and, indeed, its obligation under s.425 of the Act to give the applicant the opportunity to address its concerns. For that reason, I am not satisfied, even if it were true that the Tribunal was entirely preoccupied by questions on credibility that there is established, let alone clearly established, either actual bias or a reasonable apprehension of bias in relation to the questioning.

19. The second element of the ground is that the Tribunal did not assess the real risk that he would be facing if the applicant returned to China;  in other words, the bias is said to be established by findings made by the Tribunal.  It is pretty difficult to establish either actual or apprehend bias by reference solely to the reasons for the Tribunal’s decision.

20. Clearly enough, those reasons come at the end of the decision-making process and by the stage that they are expressed in writing, the Tribunal has made up its mind, as it is obliged to do.  In any event, the Tribunal’s reasons disclose that it had a logical basis for each of its conclusions.  It explained at length the reason why it did not accept that the applicant was telling the truth about a number of matters, including the lack of evidence about certain facts, about inconsistencies between different claims and the country information which was inconsistent with some of his claims.

21. Those reasons are inconsistent, in my opinion, with a conclusion that the Tribunal was actually biased.  Noting the High Court authority of Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, any reference to the reasons for decision in connection with apprehension of bias is dangerous at least, because it risks confusing that matter with an allegation of actual bias. For those reasons, I reject ground 3.

22. The fourth ground is that the history of the applicant is important and relevant to the claim, the first and second respondents have ignored the facts.  This ground is no more than mere disagreement with the conclusion reached by the delegate and with the Tribunal’s decision.  For the reasons I have given, any error in the delegate’s decision are irrelevant and disagreement with the Tribunal’s decision to this extent does not establish jurisdictional error.  The fourth ground is rejected. 

23. The fifth ground is that the Tribunal made an assumption at [41] that the Chinese government actually allows a lot of freedom to house churches in China. An assumption is a conclusion without any basis. That is not what the Tribunal did at [41]. At [41], after stating that “the Chinese Government actually allows a lot of freedom to house churches in China”, the Tribunal refers in a footnote to the information from which that finding was made: see footnote 10, which refers to [3.1] – [3.2] of the DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

24. There is nothing before me to suggest that that report did not support the Tribunal’s statement at [41]. For that reason, there was no assumption as contended by the applicant and the ground must be rejected.

25. Ground 6 is that the Tribunal “ignore several crucial facts that the applicant’s daughter was lost the contact after she went back to China”.  The word “ignore” in this context can mean a number of things.  It could mean, for instance, that the Tribunal overlooked or failed to have regard to evidence concerning certain facts or claims.  If that were the case, depending upon the importance of those claims or that evidence, ignoring would, or could, amount to jurisdictional error.  In another sense, ignoring can mean not accepting.  In that sense, the contention would again be a mere disagreement with findings. 

1. The Tribunal did not ignore any facts concerning the daughter in the first of these senses.  At [16], [17] and [18], it set out its discussion with the applicant of what had occurred to his daughter when she returned to China and, at [37], made findings on the basis of that evidence.  It did not accept, for instance, that the applicant, his wife or the daughter were “on the radar” of the police or were being currently harassed by the police because of the applicant’s religious faith.

2. As that sense of the word ignore is the only one that could give rise to jurisdictional error, and I have found that the Tribunal did not ignore the relevant evidence in that sense, then this ground too, must be rejected.

3. Ground 7 is that the first and second respondents, that is the Minister and the Tribunal, did not give the opportunity to the applicant to present his claim.  Once again, I note that the only evidence of what occurred at the Tribunal hearing is set out in the Tribunal’s decision.  What is set out there discloses that the Tribunal discussed various matters with the applicant, including its concerns about his evidence.  I am not satisfied on the basis of that evidence that the applicant was denied any opportunity to present his claims.

4. The final ground in the application is that the first and second respondents misinterpreted the quote “well-founded” fear based on the applicant’s background and experience in Australia.  The question of whether the applicant had a well-founded fear was not one that arose before the Tribunal.  That is because the application before the Tribunal was one made in which the applicant sought to satisfy the criterion in sub-s.36(2)(aa) of the Act.  That criterion does not include any notion of well-founded fear.

5. It does include the question of whether there was a real risk that the applicant would suffer significant harm and that is what the Tribunal addressed.  For that reason, ground 8 raises a matter that is not relevant to the Tribunal’s decision and must be dismissed. 

6. The Minister also raised the possibility of an issue arising from a certificate that was given by a delegate of the Minister on 12 March 2015 under sub-s.438(1)(b) of the Act.  That is, same was given for the purposes of the review by the RRT of the applicant’s first protection visa.

7. There is a series of cases in this Court and in the Federal Court dealing with issues that arise in connection with such certificates: see, for example, MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1 and Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305. The first issue that arises ordinarily is whether or not that certificate was a valid certificate and, if so, whether the Tribunal somehow “acted on” the certificate. It has been held that in those circumstances the Tribunal might fall into jurisdictional error.

8. The second issue that arises is whether the applicant has been denied procedural fairness owing to a failure by the Tribunal to at least disclose the existence of the certificate to the applicant for comment.  In this case, the answers are provided not only in the Tribunal’s decision at [5], but also by virtue of the material to which the certificate related, which is in evidence before me.  At [5] of its reasons, the Tribunal had regard to the certificate and to the folios to which the certificate related. 

9. The Tribunal dealt with the information in two parts:  the first part being folios 154 to 162 and the second part being folios 164 and 165, both of which came from the department file N97/007264.  In respect of the first of those parts, the Tribunal said that the documents were relating to another person seeking Ministerial intervention which were mistakenly placed on the applicant’s file.  In respect of the second part, they are 2 pages of a submission to the Minister referring to five people seeking Ministerial intervention, including the applicant.

10. The Tribunal recorded that in its view none of the documents were relevant to this review.  Having had regard to the certificate and the documents, I am satisfied that the Tribunal was correct not only in its description of the documents, but also in its conclusion as to their relevance to the review.  Simply put, there is nothing in any of the documents, including those which referred to the applicant, which could possibly have had an effect on the Tribunal’s decision, see Minister for Immigration & Border Protection v CQZ15 (2017) 253 FCR 1 at [69].

11. Put another way, the existence of the certificate and the extent to which the Tribunal had regard to it, and its failure to either bring to the attention of the applicant the certificate, or any of the particulars of the information in the documents to which it related, did not deprive the applicant of the possibility of a successful outcome.  For that reason, none of those matters gave rise to jurisdictional error that affected the Tribunal’s decision.  For that reason, I accept the Minister’s submission that while the issue was one that ought to have been raised, it was not one that could properly found the granting of certiorari in this case, quashing the Tribunal’s decision.

Conclusion

1. For all of those reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error.  Accordingly, the applicant’s application for relief must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     12 October 2018

Corrections

Paragraph [2] was amended to remove identifying information of the applicant.