Bav18 v Minister for Home Affairs

[2018] FCCA 2026

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAV18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2026

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

Carrascalao v Minister for Immigration [2017] FCAFC 107

Minister for Immigration v Jia (2001) 178 ALR 421

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant: BAV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 572 of 2018

Judgment of: Judge Driver

Hearing date: 25 July 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C O’Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 572 of 2018

BAV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 February 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 18 July 2018. 

3. The applicant is a citizen of China.  The applicant applied for a business visitor visa (the visitor visa) on 16 October 2013.[1]  In his application for the visitor visa the applicant claimed to be a researcher at the Beijing Chemistry Institute of Photocatalysis applying to visit Australia for the purpose of attending an International Conference (Physchem2013) on 4 to 6 December 2013.[2]

   [1] Court Book (CB) 1 to 9

   [2] CB 3 and 56

4. The visitor visa was granted on 1 November 2013 and expired on 18 February 2014.[3]  The applicant arrived in Australia on 18 November 2013.[4]

   [3] CB 60 to 62

   [4] CB 133

5. The applicant applied for the protection visa on 11 February 2014.[5]

   [5] CB 69 to 98

6. The delegate refused to grant the applicant the protection visa on 7 August 2015.[6]

   [6] CB 99 to 118

7. The applicant sought review of the delegate’s decision by the Tribunal on 6 September 2015.[7]

   [7] CB 119 to 120

Protection claims

1. In his application for the protection visa, the applicant claimed to have fled China due to fear of persecution by police for his involvement in petitioning the local government to address pollution and workers’ occupational health and safety issues at the Yongan Galvanising Plant (Plant).[8]

   [8] CB 77

2. The applicant claimed that he worked at the Plant from 2000 and that in July 2013 he organised petitions to the local government demanding improved Plant conditions.  The applicant claimed he believes the local government were bribed by Plant management to do nothing. He claimed that he was docked half a month’s wages and warned by management to stop causing problems.

3. Subsequently, the applicant claimed that he and approximately 20 other workers demonstrated in front of the local government offices and that police were called to disperse the crowd.  The applicant claimed to have continued planning various protests including the publication and distribution of leaflets.  In October 2013 the applicant claimed a friend warned him that the local government had requested police to arrest him for inciting public disorder.  The applicant left the country soon after.

4. The applicant gave further evidence about his claims in an interview with the Minister’s Department on 25 September 2014 and at a hearing before the Tribunal in 5 December 2017.

Tribunal decision

1. The Tribunal affirmed the decision under review on 9 February 2018.[9]

   [9] CB 163 to 177

2. The Tribunal found that the applicant was not a credible or reliable witness and he fabricated his material claims for the purpose of obtaining the protection visa.[10]  The Tribunal found that there were inconsistencies with the applicant’s evidence as set out below:[11]

   a)first, the applicant gave inconsistent evidence about when he was working at the Plant and when he was working outside China, which caused the Tribunal to have concerns as to whether the applicant was working at the Plant in 2013 as claimed;[12]

   b)secondly, the Tribunal found the applicant’s evidence concerning the petition was inconsistent, including the organisation to which it was sent, the organiser of the complaint, and whether he was warned and docked wages;[13]

   c)thirdly, the Tribunal found inconsistencies as to the evidence about the demonstration;[14]

   d)fourthly, the Tribunal did not accept the applicant’s explanation that inconsistencies in his evidence were because the events took place two years ago, given the purported significance of those events[15];

   e)fifthly, the Tribunal had concerns about the timing of the application for the visa, including that the applicant did not immediately leave the Plant after July 2013[16] and that he did not immediately apply for the visa on entering Australia;[17]

   f)sixthly, the applicant’s application for the visitor visa stated that he lived in Beijing and worked for the Beijing Chemistry Institute of Photocatalysis since 2011, which was inconsistent with his claims for protection.[18]

   [10] CB 176 at [38]

   [11] see generally CB 172 to 176 at [20]-[37]

   [12] CB 172 to 173 at [20]-[21]

   [13] CB 173 at [22]

   [14] CB 173 to 174 at [23], [28]

   [15] CB 173 to 174 at [25]

   [16] CB 174 at [29]-[30]

   [17] CB 175 at [33]

   [18] CB 176 at [36]-[37]

3. The Tribunal ultimately found that the applicant had not lodged a petition to the local government or organised a workers’ demonstration. The Tribunal did not accept that he was/is a person of adverse interest to management at his former place of employment in China, the police, or any other Chinese authority and that he therefore did not fear returning to China for those reasons.[19]  Accordingly, the Tribunal found that the applicant was not at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future[20] and that he did not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[21]

   [19] see generally CB 176 to 177 at [38]-[51]

   [20] CB 177 at [43]

   [21] CB 177 at [44] and [48]

The present proceedings

1. These proceedings began with a show cause application filed on 5 March 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   ·The AAT and DIBP failed to consider my fear and risk of harm upon return to China.

   ·The AAT and DIBP failed to consider the evidence before them.

   ·The AAT failed to exercise a reasonable apprehension or actual bias.

2. I have before me as evidence the applicant’s affidavit filed with his application and the book of relevant documents (court book) lodged on 23 April 2018.

3. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from the applicant this afternoon.  He said that his judicial review application had been prepared by his lawyer, and he was not in a position to raise arguments in support of it.  It appears that the applicant has been assisted in these proceedings by a Ms Yu who I understand to be a migration agent.  Ms Yu did not attend today’s hearing.

4. I explained to the applicant that the grounds as advanced appeared very weak in the light of the record of the Tribunal decision.  I invited further submissions from him, but he declined to make any.  The Minister’s submissions deal adequately with the grounds of review advanced.  I agree with those submissions. 

Ground 1: failure to consider fear and risk of harm

1. The Tribunal considered the applicant’s claims of fear and risk of harm upon return to China.

2. The decision record demonstrates that the Tribunal considered the applicant’s claims to fear harm, but rejected all of these claims because it found that they were fabricated.[22]

   [22] CB 176 at [38], [40]-[41]

3. To the extent that the applicant asserts that “DIBP” failed to consider the applicant’s fear and risk of harm, this Court does not have jurisdiction to consider the delegate’s decision.[23]

   [23] see s.476(2)(a) and (4)(a) of the Migration Act

Ground 2: failure to consider evidence

1. The application does not particularise any evidence which the Tribunal failed to consider, nor is it apparent from an independent review of the evidence and the Tribunal’s reasons that any relevant evidence was ignored by the Tribunal.

2. The Tribunal is required to give proper, genuine, and realistic consideration to the evidence before it.[24]  Here, it was the Tribunal’s proper, genuine, and realistic consideration of the applicant’s evidence which resulted in it finding that there were inconsistencies in the applicant’s evidence as set out above. 

   [24] Carrascalao v Minister for Immigration [2017] FCAFC 107 at [29] (Griffiths, White, and Bromwich JJ)

3. Again, to the extent that the applicant asserts that the “DIBP” failed to consider evidence before it, this Court does not have jurisdiction to consider the delegate’s decision.[25]

   [25] Section 476(2)(a) and (4)(a) of the Migration Act

Ground 3: bias

1. The applicant’s third ground in substance alleges that the Tribunal’s decision was affected by actual bias, or that the Tribunal behaved in such a way which might lead the hypothetical fair-minded lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to making its decision.

2. Allegations of actual or apprehended bias must be distinctly pleaded and clearly proved.[26]

   [26] Minister for Immigration v Jia (2001) 178 ALR 421 at [69] (Gleeson CJ and Gummow J)

3. The applicant’s claim is unparticularised.  There is nothing on the face of the decision record or in the Tribunal’s conduct which indicates actual or apprehended bias.

4. To the extent that the applicant construes the adverse credibility findings as an indication of bias, the Tribunal is allowed to vigorously test evidence where an Applicant’s credibility is in issue.[27]

   [27] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]-[31] (Gleeson CJ, Gaudron and Gummow JJ)

5. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

6. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

8. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  1 August 2018