BDB18 v Minister for Home Affairs

[2018] FCCA 1939

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDB18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1939

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider all of the applicant’s claims – whether the Tribunal’s decision was bias – whether the Tribunal failed to reasonably assess the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12.

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

Applicant: BDB18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 616 of 2018

Judgment of: Judge Street

Hearing date: 16 July 2018

Date of Last Submission: 16 July 2018

Delivered at: Sydney

Delivered on: 16 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $2,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 616 of 2018

BDB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 February 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant claimed to have been a medical practitioner who then engaged in protests and was allegedly detained on two occasions by police, and the applicant feared harm from the government.

3. The applicant was granted a class FA subclass 600 Tourist visa on 7 May 2014 in Beijing. The applicant arrived in Australia on 13 June 2014 using a People’s Republic of China passport in his own name. It was not until 5 September 2014 that the applicant lodged an application for a Protection (Class XA) visa. The delegate made adverse credibility findings in relation to the applicant’s detention and protests but accepted the applicant was a country doctor of traditional Chinese medicine, massage, acupuncture and treatment of fractures, but otherwise made adverse findings in relation to the applicant’s claims and found the applicant was not of adverse interest to the Chinese authorities and found the applicant failed to meet the criteria for the grant of a Protection visa.

The Tribunal

1. The applicant lodged an application for review to the Tribunal on 24 December 2015. By letter dated 14 November 2017, the applicant was invited to attend a hearing on 29 January 2018. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the background to the visa application and set out the relevant law. The Tribunal summarised the applicant’s claims and evidence.

2. The Tribunal was prepared to accept that the applicant was a qualified rural medical practitioner and that he was detained on one occasion in October 2013 and was released on payment of a fine and the signing of a guarantee not to appeal. The Tribunal found that no formal charges were laid that would result in any outstanding Court action. The Tribunal did not accept the applicant was detained on a second occasion and gave cogent, logical reasons in support of that adverse finding and, in particular, the proposition that the applicant would have been detained for such a brief period and released if, in fact, he had been detained on an earlier occasion. The Tribunal identified the applicant would likely have faced a tougher penalty for his actions, including a lengthy period of detention on the second occasion. It was in those circumstances the Tribunal was not satisfied the applicant was detained for a second time for posting online comments about a situation. The Tribunal did not accept the applicant was required to pay money to secure his release a second time or that he was required to report regularly to the authorities after his release. The Tribunal, having accepted the applicant’s assertion that he was a medical practitioner, was prepared to accept the applicant’s assertion that he was deregistered.

3. The Tribunal then turned to the manner in which the applicant was able to depart China and his claim that he had applied for a passport and been refused. The applicant advanced a claim that it was only after a relative advised him to pay a bribe to the officials that he was able to obtain the passport. The Tribunal referred to the applicant’s claim that he asked someone to help him get a passport, who accompanied him to the Public Security Bureau, where he paid a bribe to get a passport. The Tribunal referred to the applicant’s evidence to the delegate that he had been issued a passport two weeks before because his child had scribbled on the one that had been issued. The Tribunal raised with the applicant during the hearing how he was able to obtain the passport, the applicant maintained that the system was very corrupt. The Tribunal sought to explore with the applicant whether he had difficulties when passing through the airport on his departure, and the applicant said he did not. The Tribunal took into account country information. The Tribunal found the applicant’s evidence in relation to his departure from China without being stopped and his responses and found them contradictory.

4. The Tribunal referred to the applicant’s claim that he was refused a passport by the Public Security Bureau because they were informed about the fact that he had been detained for his protest action and, on the other hand, the applicant’s claim that the reason he could exit through the airport without difficulty is because there is no official record of the fact that he was previously detained. The Tribunal identified the differing account of the manner in which the applicant obtained his passport, which caused the Tribunal to conclude that it did not accept his evidence that he paid a bribe to obtain the passport. The Tribunal took into account the fact that the applicant was able to obtain the passport in his own name and exit the airport without detection when he left the country as establishing that he was no longer a person of interest to the Chinese authorities.

5. The Tribunal referred to the applicant’s claims concerning people coming to his house and allegedly forcing his wife and children to move. The Tribunal provided logical and rational reasons in support of the finding rejecting the applicant’s claim that following the applicant’s release from detention that he was harassed or that his family have continued to be harassed in the years that have followed.

6. The Tribunal referred to the applicant’s claim that there were charges brought against him and did not accept the same. The Tribunal was not satisfied the applicant has a well-founded fear of persecution in China for reason of his protest action against local authorities. The Tribunal was not satisfied that the applicant is at risk of serious or significant harm on return to China for reason of the fact that he lives in the countryside, the health system reforms, being that pay is low and working hours are long. The Tribunal referred to the applicant having been employed as a labourer since arriving in Australia. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

7. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 29 March 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The matter was fixed for a show-cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”). At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant initially asserted that he was able to obtain his passport because the details had been changed. The substance of the applicant’s submission was consistent with the applicant asserting that the passport was fraudulent. That was not the case that he had put to the Tribunal. Rather, the applicant alleged he had paid a bribe in order to obtain the passport. The applicant then said from the bar table that he did not obtain a fraudulent passport but rather he paid a bribe. The Tribunal considered the applicant’s claim to have obtained the passport by the payment of a bribe and referred to the applicant’s inconsistent evidence about the obtaining of the passport and made adverse credibility findings dispositive of that claim that were open to the Tribunal for the reasons given by the Tribunal. No arguable case for jurisdictional error arises by reason of the applicant’s disagreement with the adverse findings in respect of his ability to obtain a passport and to depart China without difficulty.

2. The second matter raised by the applicant from the bar table was the assertion that his wife and child had continued to be harassed. That was a claim considered by the Tribunal and the subject of an adverse finding. That finding was open on the material before the Tribunal for the reasons given by the Tribunal and cannot be said to lack an evident intelligible justification.

3. The Tribunal rejected the applicant’s claim of detention a second time and provided logical and rational reasons in support of that adverse finding, which included rejecting the applicant’s contention that he posted critical comments online. The Tribunal’s reasons identified the difficulty with the applicant’s contention in terms of authorities being motivated to continually harass and disturb the applicant’s parents over a four to five-year period. The Tribunal’s adverse finding in that regard was rational, logical and reasonable and dispositive of the applicant’s claims.

4. The substance of the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. AAT have no consider all aspects of my claims, it caused Tribunal decision contains serious jurisdictional error. Tribunal did not provide me an opportunity to explain my claim. Also AAT did not consider my persecution situation in China. Tribunal is obliged to consider all material parts of my claims and should give me an opportunity to comment of the issues, it breach the jurisdictional rights granted to it by law.

   2. AAT’s decision has biased and decision was made in bad faith. I could not explain more during the interview, the member never provided me an opportunity explain my case properly. I think that the member had decided the case before I was interviewed, otherwise, the member should give me proper opportunity to explain my case.

   3. I was persecuted by Chinese Government and I was a victim. I had explained my persecution clearly, but AAT did not make a reasonable assessment. Tribunal should interview me to find facts on all aspects of my claims. It failed to do. So it breached the provisions in the law.

Ground 1

1. In relation to ground 1, the Tribunal’s reasons reflect an orthodox approach to the identification of the applicant’s claims and evidence and the making of dispositive findings in respect of those claims. There is no integer of the applicant’s claims that the Tribunal failed to address on the material before the Court. Further, it is apparent from the material before the Court that the Tribunal complied with its statutory obligations in the conduct of the review. The Tribunal refers to raising issues with the applicant in respect of the applicant’s evidence in its reasons.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing. There is nothing before the Court to establish any want of compliance with the requirements of procedural fairness in the conduct of the review. There was no material identified that the Tribunal failed to take into account and the applicant, having received the letter dated 14 November 2017 informing him that the Tribunal was unable to make a favourable decision on the information before it, was given the opportunity to and took advantage of the opportunity to give evidence and present arguments. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, no particulars to establish bias or bad faith have been provided, bringing on the erroneous assertion that the applicant was not given an opportunity to put his case. The invitation letter to the applicant made clear that the Tribunal could not make a favourable finding on the material that was before it and the applicant was invited to and did attend a hearing. The Tribunal’s reasons reflect raising issues with the applicant in the course of that hearing referable to the applicant’s claims and taking into account the explanations advanced by the applicant in the making of adverse findings that were open to the Tribunal for the reasons given by the Tribunal. Those reasons were logical, rational and reasonable.

2. Further, the adverse findings by the Tribunal and raising of issues during the hearing are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination matter on its merits. There is no substance in the assertion of bias or bad faith on the material before the Court. Indeed, the Tribunal was prepared to give the applicant the benefit of the doubt in relation to his alleged medical qualifications and accepted that he was detained on the first occasion. No arguable case of bias or bad faith is established. No case of arguable jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant’s disagreement with the adverse findings of the Tribunal does not identify any arguable case. The applicant’s assertion that he was persecuted by the government is, in substance, an invitation to this Court to engage in impermissible merits review. The proposition that the Tribunal did not interview the applicant on all aspects of his claim is not supported by any particular aspect of his claim that was not considered by the Tribunal, and it is clear the applicant did have a real and meaningful hearing and opportunity to give evidence and present arguments before the Tribunal. There is no provision of the statute that has been identified to be the subject of any arguable breach. No arguable case of jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the application fails to disclose any arguable case of jurisdictional error, I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018