BGO16 v Minister for Immigration

[2018] FCCA 1107

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1107

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the applicant was afforded a real and meaningful invitation to appear under s.425 of the Migration Act 1958 (Cth) – whether the Tribunal’s decision was affected by a reasonable apprehension of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 438, pt.7

Cases cited:

AVO15 v Minister for Immigration & Border Protection [2017] FCA 566
BEG15 v Minister for Immigration & Border Protection [2017] FCAFC 198
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Applicant: BGO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1314 of 2016

Judgment of: Judge Smith

Hearing date: 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Sydney

Delivered on: 11 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Lucchese, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1314 of 2016

BGO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of China, who arrived in Australia on 15 March 2008.  On 14 March 2014, she lodged an application for a protection visa.  Her claims made in support of that application were summarised by the Administrative Appeals Tribunal at [10] to [13] of its reasons, which I adopt for the purpose of this decision and set out below:

   10.The applicant claims she was sexually assaulted by a classmate in July 2007 and that her classmate’s family were powerful in local government and well connected. She claimed she became pregnant in 2007 and had an abortion.

   11.She stated that her family arranged for her to leave China and come to Australia as a student in 2008 to make a fresh start.

   12.She claimed that her classmate’s family wanted her to marry her classmate and that they gave her family money but later demanded the return of an amount of money. Her father assaulted her classmate’s father and was detained for a month before being released on the payment of a fine. She claimed her parents were demoted as a result of the dispute.

   13.She fears if she returns to China she will either be pressured to marry her classmate or will have a difficult time because of her classmate’s family and their influence.

   (Without alteration)

2. In her written claims the applicant also made a claim based upon religious freedom which was, she said, absent in China, however this claim was not pressed by the applicant when she appeared at the Tribunal: see [67] of the Tribunal’s reasons.

3. On 24 September 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant then applied to the Refugee Review Tribunal (RRT) for review of that decision.  Subsequently in July 2015, the Administrative Appeals Tribunal took over the functions of the RRT and it was that Tribunal that continued and completed the review of the delegate’s decision. 

4. As part of that review, the Tribunal invited the applicant to attend a hearing.  The hearing was at first conducted on 10 March 2016, at which the applicant gave evidence and presented arguments with the assistance of an interpreter.  The hearing was adjourned to a second day on 20 April 2016, where again the applicant gave evidence and presented arguments.  On 21 April 2016 the Tribunal made a decision to affirm the decision of the delegate.

5. The reasons for the Tribunal’s decision are accurately summarised in [5] to [10] of the respondent’s outline of submissions, and I adopt those for the purpose of this judgment and set them out below:

   5The Tribunal accepted that the applicant had been sexually assaulted by Yang and had an abortion (CB 124, [23], CB 129, [60]). However, on the basis of DFAT country information and the absence of satisfactory evidence, the Tribunal did not accept that there was an ongoing risk that the applicant would be forced to marry Yang should she return to China (CB 129, [61]).

   6Having noted inconsistencies in various aspects of the applicant’s evidence, the Tribunal rejected the applicant’s claim that her parents had sold their house to fund the applicant’s travel and education expenses (CB 125, [29]). The Tribunal found the applicant’s evidence about her family being required to pay RMB 500,000 to be unreliable and lacking in credibility CB 126, ([33]).

   7The Tribunal accepted that there was an ongoing dispute between the two families and that the applicant’s father had been arrested for assault, but it did not accept the applicant’s claim that the RMB 500,000 was related to the sexual assault or to the RMB 200,000 given by Yang’s family to the applicant before she came to Australia (CB 126, [39]). The Tribunal noted the applicant’s inability to plausibly explain why her family was required to repay RMB 500,000, when they had only been given RMB 200,000 by Yang’s family, or why Yang’s family would suddenly demand repayment of this money (CB 126-127, [39]-[42]). The Tribunal, therefore, did not accept the applicant’s explanation for the cause of the dispute between the two families and instead found that the dispute was a private matter between the families (CB 129, [64]).

   8The Tribunal did not accept the applicant’s explanation for the delay in bringing her protection visa application after she arrived in Australia (CB 127, [46]). The Tribunal further noted that it raised with the applicant her claim to be a Christian and described her response that while she had been to Church, she was not ready to be a Christian (CB 127, [48], CB 130, [67]).

   9The Tribunal further considered the applicant’s claimed health problems and noted that she had not provided any evidence of a psychological disorder and had not sought any treatment (CB 130, [66]). The Tribunal found that these problems were not Convention related and did not amount to serious harm (CB 130, [66]). The Tribunal also found that the claimed psychological problems did not constitute significant harm for the purposes of complementary protection (CB 130, [72]).

   10Based on its anterior findings, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations, pursuant to either s.36(2)(a) or s.36(2)(aa) of the Act (CB 130-131, [68], [72]-[73]).

   (Without alteration)

6. The applicant now seeks judicial review of the Tribunal’s decision.  There are two grounds in her application.  Before dealing with those, it is necessary to say something about the oral submissions made by the applicant at the hearing today.

7. The applicant, who appeared unrepresented, essentially complained that at the interview conducted by the delegate she was repeatedly asked the same questions, and there was no real attempt by the delegate to understand her case or interest shown in her case.  The difficulty with any submissions concerning the way in which the delegate conducted the interview is that this Court does not have any power to review the delegate’s decision or his or her exercise of the power under the Migration Act 1958 (Cth) to determine visa applications.

8. A delegate’s decision, being one to refuse to grant a protection visa, is reviewable under pt.7 of the Act, and for that reason is a primary decision, which is excluded expressly from this Court’s jurisdiction. The Court does have jurisdiction in respect of the Tribunal’s decision, it being what is described as a migration decision and not being a primary decision.

9. When asked at the hearing about the Tribunal’s hearing, the applicant did not express any real complaint about it.  The applicant said that the Tribunal did not ask her a lot of details but did ask a number of questions that had been asked by the delegate.  The applicant said that the Tribunal’s hearing did not resolve all of the concerns that she had with the delegate’s interview, and that was why she raised complaints about the delegate’s interview.  In effect, she had no real concern or issues with the way in which the Tribunal conducted the hearing. 

10. Those submissions stand in contrast to the first ground in the application, and I will turn to that ground now. In summary, the applicant alleges in this ground that the Tribunal breached s.425 of the Act. That provision requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

11. The applicant says that while she was invited to appear before the Tribunal, it did not give her a genuine opportunity to give evidence in support of her claims.  The applicant says that because of the sexual assault upon her while she was at high school, she suffered many mental difficulties, and so, on some occasions, could not understand the Tribunal’s questions properly.  In addition, even when she did understand the Tribunal’s question, she was unable to give evidence in a proper way.  This, she says, explains why her oral evidence might have been “vague, evasive or even inconsistent”.

12. The applicant further says that her personal background, as set out in her claims for protection, meant that she was afraid to speak freely and to give a full and accurate account of her case at the hearing.  The applicant goes on to allege that the Tribunal rarely took genuine steps to ensure that she understood the issues in relation to the review.  The applicant says that she thought the Tribunal had already understood her situation and accepted her claims, and so she thought that she did not need to present any further arguments or claims.

13. It is well accepted that the invitation required to be given by s.425 of the Act must be a real and meaningful one, and in the absence of such an opportunity to participate in the hearing, the Tribunal will have breached s.425. There are two difficulties, however, with the ground as it is stated, leaving aside its inconsistency with what the applicant has told me today.

14. The first is that even if all of the factual assertions claimed in the particulars to the ground were accepted, they would be not sufficient to establish that the applicant did not have a real and meaningful opportunity to give her evidence. It may well be that she found it difficult in her circumstances to explain fully her case, but the opportunity in s.425 of the Act does not extend to requiring a perfect opportunity, only a real and meaningful or reasonable one in all of the circumstances.

15. Secondly, and more importantly for present purposes, there is simply no evidence before the Court to support any of the contentions made in the grounds of the application.  When this was pointed out to the applicant at the hearing, she said at first that she thought that the Court would have all of the evidence.  Then she said that she thought that the Minister would provide that evidence.  Why else, she asked rhetorically, would there have been a recording made by the Tribunal of the hearing?

16. These claims do not sit well, however, with the fact that the Registrar in this case made orders on 21 July 2016 requiring the applicant to file and serve any evidence to be relied upon, including a transcript of the Tribunal hearing by 15 September 2016.  I do not accept that the applicant was under the misapprehension that she claimed.  It may be that she did not realise the importance of the failure to file evidence in support of her claims, but having been given the opportunity to do so, then, in my view, no further opportunity ought reasonably to be given and the ground ought to be dismissed in the absence of evidence to establish it.

17. The second ground in the application is that the Tribunal’s decision was affected by a reasonable apprehension of bias. The ground is explained by saying that the Tribunal accepted that the applicant was a victim, and even accepted that the applicant’s family owed money to her assailant’s family, but it gave no reason for why and how it found that the debt owing from one family to the other had no relation to the assault.

18. Even if it were permissible to have regard to the reasons of the Tribunal to determine whether there was a reasonable apprehension of bias, the findings isolated by the applicant would not give rise to any apprehension in a reasonable observer that the Tribunal may have so prejudged the matter that it would not decide the matter according to its merits: see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48.

19. The Tribunal explained in its reasons why it did not accept that there was a connection between the debt and the sexual assault that had occurred in 2007.  The Tribunal said at [42] of its reasons that it found that the applicant had “not given a complete and truthful account of the reason for her family’s dispute with [her assailant’s] family”.  That finding indicates that far from having prejudged the matter, the Tribunal’s decision was based upon an assessment of the evidence given by the applicant at the hearing.

20. Understanding that, and the role of the Tribunal in the merits review of the delegate’s decision, no reasonable observer might come to the conclusion that the Tribunal might have been biased in the sense of having prejudged the matter.  For those reasons, the second ground in the application is rejected.

21. The Minister has brought to the attention of the Court the existence in the material before the Tribunal of a certificate purportedly given under s.438 of the Act. That certificate certifies that sub-s.438(1)(a) of the Act applies to certain information because that information relates to an internal working document and business affairs. The Minister properly admits that the certificate is invalid because those reasons cannot properly give rise to certification under sub-s.438(1)(a): see MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081.

22. However, the Minister also appears to accept that neither the documents nor the certificate were shown to the applicant nor their existence brought to her attention. Nevertheless, the Minister submits that no jurisdictional error arose simply because the documents to which the certificate related could have had no bearing upon the Tribunal’s decision. This supported the inference, it was submitted, that the Tribunal did not consider either the certificate or the information.

23. I accept the submission that the documents, which are in evidence before me, could have had no bearing on the issues to be decided by the Tribunal. Those documents consisted of identification and application details, copy of a passport and a visa application validity check.  In light of the decisions in AVO15 v Minister for Immigration & Border Protection [2017] FCA 566 and BEG15 v Minister for Immigration & Border Protection [2017] FCAFC 198, I conclude for that reason that there was either no jurisdictional error in connection with the invalidity of the certificate, or that, if there were, I would refuse relief in the exercise of discretion because it would be futile to grant relief.

24. The applicant has not established that the Tribunal’s decision is affected by jurisdictional error, and for that reason the application must be dismissed. Alternatively, I would refuse relief in the exercise of the Court’s discretion.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       8 May 2018