AVO16 v Minister for Immigration

[2016] FCCA 3247

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3247

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal was biased in making its decision by pre-judging the applicant’s case – whether the Tribunal erred in making a decision without further documentary evidence from the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16
SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146

Applicant: AVO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 869 of 2016

Judgment of: Judge Smith

Hearing date: 27 October 2016

Date of Last Submission: 30 November 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 869 of 2016

AVO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 15 December 2010 on a temporary student visa. On 30 October 2013 the applicant applied for a protection visa.

2. A delegate of the Minister refused to grant the applicant a protection visa on 30 June 2014. On 23 March 2016 the Administrative Appeals Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, the applicant must show that the Tribunal’s decision is affected by jurisdictional error.

Background

1. The applicant is married with three children (who remain in China). He is a carpenter by trade who worked in a furniture shop in China. The applicant claimed that in 2009 he and a friend borrowed money to purchase the furniture shop and its property. In 2010, Mr Z, the son of a government official in the local District, forced the applicant and his friend to sell their business and its property for a lesser amount than its market price. The applicant claimed that he and his friend initially tried to refuse the offer; however they were threatened and harassed frequently by Mr Z and his men. Eventually, the applicant and his employees were forced to leave the shop. The applicant and his friend were paid an amount of money for the business by Mr Z. The applicant claimed that he reported the matter to the police; however, the police failed to take any action.

2. After approaching different agencies, including the Public Security Bureau (PSB), the applicant and his friend went to Beijing to appeal to the central government. He was arrested at the train station and taken to a “black jail”[1] located in a remote area, where he was detained for approximately three months. The applicant claimed that whilst detained, he was required to do farm work for more than 10 hours a day and was tortured by the police and other detainees. The applicant’s friend was tortured to death by the police in July 2010.

   [1] Courtbook, p.104; described as “a network of extralegal detention centres”.

3. The applicant’s wife did not know where the applicant was being detained. In an attempt to locate the applicant, she paid an amount of money to Mr Z to arrange for his release. She also went to the police but they did not help her.

4. The applicant was released on 9 August 2010 after signing a forced confession that he was actively involved in activities damaging social security and promising that he would not seek an appeal in the future. He was also warned not to expose information about the black jail or he would be severely punished.

5. The applicant claimed that the authorities were constantly monitoring him after his release as they regarded him to be a troublemaker. The applicant claimed that Mr Z constantly harassed him. For these reasons, the applicant procured a passport through bribery, secured a visa and left China in November 2010. The applicant claimed that, since having left China, the police and Mr Z and his men have continued to threaten and harass his wife and children and he has been warned to keep quiet overseas or his wife will be sent to jail.

Tribunal’s decision

1. The applicant attended a hearing conducted by the Tribunal on 12 October 2015. On 23 March 2016, the Tribunal affirmed the decision of the delegate.

2. The applicant’s claims before the Tribunal were largely consistent with those given by him to the Department. The Tribunal also took into account the evidence of the applicant’s witness, Mr J, and independent country information.

3. In considering the applicant’s claims regarding his ownership of the furniture shop and its forcible acquisition by Mr Z, the Tribunal found that the applicant’s explanation for this lacked credibility and was implausible. The applicant told the Tribunal that he handed the ownership papers to Mr Z prior to receiving payment for the business, despite the applicant having described him as a “rascal”. The applicant did not provide any documentation to the Tribunal in support of his claimed ownership of the business, despite having owned this business since 2009. The Tribunal was also not satisfied that the applicant had complained to the police about Mr Z.

4. Having found the applicant’s evidence regarding the ownership of the business was untruthful, the Tribunal did not accept that he and his friend had been intercepted by police at the railway station on the way to Beijing. The Tribunal found it implausible that:

   a)the applicant would be taken to a black jail and held for more than three months over a private dispute;

   b)the applicant’s friend had been tortured to death;

   c)the applicant’s wife paid money to Mr Z to arrange the applicant’s release from the black jail; and

   d)the police continued to harass and monitor the applicant after his release.

5. The Tribunal next considered the applicant’s claim that he was able to procure a passport and visa and leave China legally. The Tribunal found that this was inconsistent with the applicant’s claim to have been placed on a blacklist, or that he was of adverse interest to the authorities.

6. The Tribunal then turned to consider the evidence of the applicant’s friend, Mr J. Mr J gave evidence by way of statutory declaration and oral evidence provided at the Tribunal hearing that he met the applicant in a store queue; had been acquainted with the applicant on two or three occasions; and travelled to China to see the applicant’s family and took them two bags of milk powder. Mr J also gave evidence that the police subsequently visited him and warned him that the applicant was a criminal and they were looking for him. The Tribunal found Mr J’s evidence to be implausible and lacking in credibility. The Tribunal also found his evidence to be inconsistent with the fact that the applicant was able to obtain a passport and leave China legally, without incident.

7. The Tribunal then considered the applicant’s claim to fear harm from the authorities in China due to his attempts to complain about the forced acquisition of his furniture shop. The Tribunal, having given the applicant the benefit of the doubt as to his ownership of the business, found that the applicant did not have a real chance of suffering serious harm in the reasonably foreseeable future. The Tribunal did not believe, given the length of time that has passed, that the applicant would take any further action to pursue his grievance concerning the business.

Proceedings in this Court

1. In his application to this Court, the applicant stated the following grounds (without alteration):

   I have found that the Tribunal member is definitely NOT “assessing” my claims or my evidence. Insted. I firmly believe that the Tribunal member is apparently “refusing” my claims. No matter what I have said or claimed. they must be denied or rejected by Tribunal member. In other words, the Tribunal member has already decided everything in her mind, before the Tribunal hearing.

   It seems that the Tribunal member requires me to provide documentary evidence in support of each of my claims. However, the Tribunal member has her decision significantly based on her own imaginations or guesses without any documentary or evidence. It is definitely unfair.

2. There appear to be two contentions here: first, that the Tribunal was actually biased in the sense that it had prejudged the applicant’s case; and secondly, the Tribunal erred because it did not have evidence rebutting his claims. Neither ground is made out.

Ground one

1. 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: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72]; [2001] HCA 17 (“Jia Legeng”) (Gleeson CJ and Gummow J). Authority requires that that is a stringent test and an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] – [73] (Gleeson JA, Emmett JA and Tobias AJA agreeing); South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [97] and the authorities there cited.

2. The applicant did not address this ground in either written or oral submissions. He did not identify any aspect of the Tribunal’s conduct which supported his allegation of bias and appeared to rely solely on his belief that the member had already decided everything prior to the hearing. There is no question that the Tribunal must have formed some view unfavourable to the applicant prior to the hearing. Otherwise, it would not have invited him to a hearing: see s.425 Migration Act 1958 (Cth). However, natural justice does not require the absence of any predisposition or inclination: Jia Legeng at 532 [72].

3. The only evidence of the way in which the Tribunal conducted itself, and from which any inference of bias might be drawn, was its reasons for decision and a transcript of the hearing (which was in evidence for reasons set out below). Neither supports any finding of bias.

4. In my view, the Tribunal’s reasons reveal that the Tribunal considered all of the applicant’s material and evidence including that given at the hearing. It then made findings based on its assessment of that evidence. Given that approach, the fact that it rejected the applicant’s claims does not support any finding of bias because those findings all appear to have been made at the conclusion of the Tribunal’s consideration of the application for review.

5. Similarly, the transcript does not reveal any bias. It shows that the Tribunal asked the applicant a number of questions designed to elicit further information from the applicant in respect of his claims; on one occasion, the Tribunal indicated that it was not following the applicant and asked for clarification[2]; on other occasions, it suggested to the applicant that he was giving inconsistent accounts or that it was having difficulty accepting what he was saying[3]; it also put country information to the applicant for comment[4] and asked the applicant if he wanted to say anything about the evidence of his witness[5]. That process was a normal part of the opportunity afforded to review applicants to give evidence and make submissions about the issues on review. It does not suggest that the Tribunal was unwilling to change its mind about the applicant regardless of what evidence or arguments he gave.

   [2] Transcript reference: 12.6-9.

   [3] T13.4 – 14.4; 20.5; 22.3; 25.2; 30.7.

   [4] T22.23.

   [5] T39.

6. This ground is rejected.

Ground two

1. The second ground is rejected because it is well-established that the Tribunal does not need rebutting evidence before it can make findings inconsistent with the applicant’s claims: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348; [1994] FCA 1105; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [65].

Ground raised at the hearing

1. The applicant appeared unrepresented at the hearing of this matter and sought to raise a new ground. He claimed that a witness gave evidence at the hearing and the Tribunal did not raise any doubts concerning the credibility of this witness. As the Tribunal did not question what the witness said, the applicant alleges he lost the chance to provide a further explanation and/or information.

2. In light of the fact that the applicant was unrepresented, I informed him that his argument would fail without evidence of what occurred at the hearing but that he could ask for an adjournment in order to obtain such evidence: see SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146. The applicant then applied for, and was granted an adjournment. He subsequently filed an affidavit to which a transcript of the hearing was annexed. The Minister filed submissions concerning the new point but the applicant did not.

3. The transcript reveals that, after the applicant’s witness gave evidence, the following discussion took place between the applicant and the Tribunal[6]:

   Member: … [Y]ou heard the evidence that [Mr J] gave just now, is there any comment you wish to make about it?

   Applicant:No.

   Member: Ok uh in comment, I’ll invite you to make comment on these, it doesn’t sound like you, you knew him for very long before he agreed to, to visit your family in China, umm so he said he met you 2 or 3 times having met you randomly at a shop in Christmas, if you didn’t know each other very well, I’m a little, uh I may have some, some concerns about whether I will accept that he’ll take something back to China uh for you to you, for your parents. Um sorry particularly just umm you said that you gave him 2 bags of milk powder which also surprises with me your, somebody’s visiting your family, you haven’t seen them for many years, that something that, that uh that is something uh a person who’s only recently met you would agree to take back and whether also it’s uh realistic that that’s all you asked him to give, do you have any comments about this concern that I might have?

   Applicant:Umm, in China because we from the same area, so umm not many people in my, in my area are in Australia, so when we met each other we instantly feel very close.

   [6] T39.3.

4. This passage reveals that, contrary to the applicant’s assertion, the Tribunal did give the applicant an opportunity to address its concerns in respect of his witness’ evidence. For that reason, the factual basis for the ground has not been made out and I refuse leave to the applicant to amend his application to rely on the ground.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 16 December 2016