AWV15 v Minister for Immigration

[2016] FCCA 3158

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWV15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3158

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425

Cases cited:

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

[2013] HCA 18

Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR

575; [2010] FCAFC 41

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

CLR 507; [2001] HCA 17

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCAFC 80

First Applicant: AWV15

Second Applicant: AZD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1560 of 2015

Judgment of: Judge Barnes

Hearing date: 24 November 2016

Delivered at: Sydney

Delivered on: 24 November 2016

REPRESENTATION

The First Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to read "Administrative Appeals Tribunal".

2. The application be dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $4,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1560 of 2015

AWV15

First Applicant

AZD15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeal Tribunal) dated 6 May 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The Applicants are husband and wife and citizens of the People’s Republic of China.  They applied for protection in February 2014.  The First Applicant (referred to for convenience hereafter as “the Applicant”) claimed, in essence, that the authorities forced him to relocate from his home town because of demolition of his home for redevelopment.  He claimed he had refused to give permission for his house to be demolished; that he was targeted by gangs; that his wife was forced to agree to the demolition and was paid compensation; and that he subsequently protested and was threatened and later detained.  He claimed that if he returned to China he would be monitored by the authorities.  His wife applied as a member of his family unit. 

3. The application was refused.  The delegate found that the Applicant’s claims were brief and unsubstantiated and that his oral evidence was vague, rehearsed and contrived and contained internal inconsistencies and a lack of plausibility. 

4. The Applicants sought review by the Tribunal.  They were invited to a Tribunal hearing.  The First Applicant attended the Tribunal hearing, which was conducted with the assistance of a Mandarin interpreter.

5. In its reasons for decision the Tribunal outlined the claims made by the Applicant in a statement accompanying the protection visa application, including his claims that he had been beaten and threatened on many occasions by gang members who were connected with those in the government, that he had been arrested and tortured by the Public Security Bureau and that he feared that on return he would be monitored by the government and the Public Security Bureau and could be tortured or threatened with death.  He also claimed to fear future beatings by gang members because he had previously been subjected to similar treatment and such things had happened to other people in China. 

6. The Tribunal described the Applicant’s elaboration at the hearing of his claims in relation to the circumstances in which he was approached by the authorities about the demolition of his house and what he said had occurred thereafter.

7. However, the Tribunal found, for reasons which it gave, that it did not accept that the Applicant was a truthful witness or that he had given it a truthful account of his experiences in China or his reasons for leaving China.  It summarised its reasons and then addressed them in detail.

8. The Tribunal considered the Applicant’s evidence in his application was brief and lacking in detail as to past events.  It referred to the delegate’s finding about his evidence at the interview being vague, rehearsed and contrived.  It was of the view that during the Tribunal hearing, the Applicant had considerable difficulty elaborating on his claims to fear harm and providing details of incidents he claimed led to him leaving China.  It found that the Applicant continually appeared to be providing evidence in a rehearsed and contrived manner, rather than responding to Tribunal questions in relation to basic aspects of his claims.  The Tribunal was “drawn to the conclusion” that the problematic nature of the Applicant’s evidence was not because he had difficulty explaining his claims, as he had said, but rather because he had manufactured the totality of his claims to fear harm and had difficulty elaborating on them. 

9. The Tribunal detailed its concerns about particular aspects of the Applicant’s evidence.  In that context it accepted that the hearing may have been a stressful situation and that it could be difficult for an applicant to fully articulate his claims in such an environment.  However, having regard to the significance of the events the Applicant claimed had occurred, the Tribunal was of the view that his inability to provide anything other than limited responses to questions about the day on which his property was forcibly demolished and what he was told by his wife raised serious doubts about the credibility of his claims that the property was demolished. 

10. The Tribunal found that the Applicant’s evidence about what happened when he first went to relevant offices to complain was unpersuasive.  It did not accept that he would be unable to provide more detail as to the events which had occurred or the injuries he had sustained due to several beatings.  It found that he was unable to explain the beatings and injuries in any more than an extremely limited manner.

11. The Tribunal also considered that the Applicant’s claims about actions he took after he was purportedly beaten badly and sustained rib damage was not credible.  It accepted that had the Applicant’s home been destroyed without his permission, he would have undoubtedly been upset and angry, but did not accept that it was credible that he would continue to go to government offices to protest if he had been mistreated as claimed, including being beaten and threatened with death on several occasions. 

12. The Tribunal found that the Applicant’s claims that he continued to protest, even when he had no success and had been harmed and threatened, were not credible and that this indicated that such claims had been manufactured.  It was not satisfied that the Applicant had satisfactorily explained why gangsters and the authorities would continue to monitor him and damage his mother’s home even after he had been allegedly detained in February 2013 and had ceased pursuing any avenues of complaint.  It did not accept that he had satisfactorily explained why he would be continually monitored such that he would need to leave China a year after he had ceased complaining. 

13. Having considered all the evidence, the Tribunal did not accept the Applicant’s claims that he was threatened, his house damaged by gangsters who wanted him to sign paperwork permitting the demolition, that his wife was forced to place a fingerprint on the agreement, that the house was forcibly demolished with compensation of 50,000 yuan, that the Applicant protested to the city, district or provincial governments or that he was threatened or detained by the government at any time.  Nor did it accept that his mother’s house had since been damaged or that he had any genuine fear of harm in China.  The Tribunal considered he left China in an orderly manner and not because he feared harm in China. 

14. The Tribunal did note that during the hearing it had raised some inconsistencies in relation to the Applicant’s evidence to it and to the delegate in the interview, which the Applicant disputed.  It recorded that the Applicant had asked it to re-listen to the recording of the interview and that it did so.  Having done so, the Tribunal accepted the Applicant’s explanation and that there were no inconsistencies between his oral evidence to the Department and to it.  However it pointed out that it had made a number of adverse findings in relation to other aspects of the Applicant’s evidence. 

15. Insofar as the Applicant claimed at the hearing that his wife had a brain condition and had tried to kill herself in China, the Tribunal had regard to the fact that there was no further evidence of this condition or how it would affect his wife’s ability to return to China.  On the evidence before it, the Tribunal was not satisfied that any brain condition would result in the Applicant’s wife (the Second Applicant) suffering serious harm on return to China.

16. The Tribunal was not satisfied that the Applicant had any adverse political profile in China when he and his wife left or that he had since obtained such a profile.  It was not satisfied there was a real chance that he or his wife would suffer serious harm for any Convention reason. 

17. As it had not accepted any of the Applicant’s claims to fear harm and had found there was not a real chance he would suffer serious harm, for the same reasons the Tribunal was not satisfied he met the complementary protection criterion.  Nor was it satisfied that his wife would suffer significant harm due to any brain condition from which she may suffer.  The Tribunal affirmed the delegate’s decision. 

18. The Applicants sought review by application filed in this Court on 10 June 2015.  There is one ground in the application.  The Applicant did not file an amended application. 

19. The ground in the application is as follows: 

    The Tribunal pointed out that my evidence during the interview was vague, rehearsed and contrived and significant elements were internally inconsistent or not plausible.  I believed the Tribunal would not accept that I am true refugee in the first place and ignore the weight of the evidence.  Otherwise the Tribunal should give me more time to explain myself.

20. The Applicants did not file written submissions.  The Applicant was given the opportunity today to make oral submissions, to which I will return.  Considering first the ground in the application as pleaded, insofar as the Applicants appear to take issue with the Tribunal’s credibility finding (albeit that the first sentence of the ground refers to the Tribunal’s account of what the delegate had found), the Tribunal’s findings in relation to the Applicant’s credibility were reasonably open to it on the material before it for the reason which it gave.

21. There is nothing in the material before the Court to support any contention that the credibility findings were based on a false factual basis or attendant with bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80). It appears from the second sentence in the ground that the Applicant may have intended to assert actual or apprehended bias in referring to his belief the Tribunal would not accept that he was a true refugee “in the first place”.  However, neither actual nor apprehended bias is made out on the material before the Court.  Such an allegation must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]). Actual bias or the state of mind amounting to prejudgement in the sense of a person so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented (as discussed in Jia Legeng) is not made out. 

22. Nor is apprehended bias, considered from the perspective of the hypothetical fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, made out (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). In this respect the only evidence of what occurred at the Tribunal hearing is the Tribunal reasons for decision. There is nothing in the Tribunal account of the hearing to support any allegation of an apprehension of bias.

23. It is the case that, as indicated above, the Tribunal noted that it had raised with the Applicant apparent inconsistencies between his evidence to the delegate and oral evidence to the Tribunal.  However, after listening to a recording of the delegate’s interview, the Tribunal accepted that there were no such inconsistencies.  It did not base its findings on any such inconsistencies.  Neither actual nor apprehended bias has been established. 

24. This ground also asserts that the Tribunal ignored the weight of the evidence.  This contention is not made out.  On the contrary, it appears on the material before the court that the Tribunal considered the evidence before it but, for reasons which it gave, did not accept that the Applicant was a truthful witness or that his claims about events in China which had caused him to leave the country were truthful.  The fact that the Tribunal did not accept the Applicant’s claims does not mean that it ignored the evidence in the manner contended for by the Applicant.  Beyond this the Applicants seek impermissible merits review.  Further, it is apparent that the Tribunal considered the integers of the Applicant’s claims, including claims that appeared to be put on behalf of the Second Applicant, notwithstanding that she had indicated by completing a Form D that she had no claims of her own for protection. 

25. Finally, it was contended that the Tribunal should have given the Applicant more time to explain himself. The Tribunal invited the Applicants to a hearing under s.425 of the Act. It appears from the hearing record that the hearing commenced at 11.38am and was completed at 1.10pm. There is nothing in the material before the court to indicate that the Applicant sought additional time to explain himself, an adjournment of the hearing or a postponement of the Tribunal decision to enable him to provide further information. It was not for the Tribunal to prompt him to provide an explanation or to seek an adjournment (Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41). There is nothing in the Tribunal’s account of what occurred at the hearing to support any claim that an issue of further information or an adjournment arose such as to require it to exercise any discretion in that respect in a reasonable manner (cf Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18).

26. As pleaded, the ground in the application is not made out. 

27. At the hearing today the Applicant took issue with the Tribunal’s failure to believe him.  He claimed that he could not live in China anymore and that he had been truthful to the Tribunal.  In that respect he seeks impermissible merits review. 

28. He also contended that the Tribunal did not treat him “fairly”.  When given the opportunity to elaborate on this contention, the Applicant repeated that he was persecuted in China and could not live there.  As indicated, such a response seeks impermissible merits review.  Having regard to the reasons which it gave, the Tribunal’s failure to believe the Applicant is not such as to establish a denial of procedural fairness. 

29. There is nothing in the material before the court to indicate any failure by the Tribunal to comply with its procedural fairness obligations in Division 4 of Part 7 of the Migration Act1958 (Cth). It invited the Applicants to a hearing as required by s.425 of the Act. It appears from the Tribunal’s account of what occurred at the hearing that it raised dispositive issues with the Applicant. It ultimately accepted that there were no inconsistencies between the Applicant’s oral evidence at the hearing and oral evidence to the delegate. It did not rely on such matters. There is nothing otherwise to indicate that there was any information that enlivened s.424A obligations.

30. As no jurisdictional error has been established on any of the bases contended for by the Applicants, the application must be dismissed. 

31. The Applicants has been unsuccessful. It is appropriate that they meet the costs of the First Respondent. The amount sought is considerably less than the amount provided for in the Federal Circuit Court Rules, appropriately so, having regard to the nature of this and other similar matters.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 7 December 2016