BHC17 v Minister for Immigration
[2019] FCCA 1666
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHC17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1666 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal was biased against the applicant – whether the Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 92R, 474, 476. |
| Cases cited: Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 |
| Applicant: | BHC17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 910 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 12 June 2019 |
| Date of Last Submission: | 12 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Asaf Fisher (HWL Ebsworth) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 910 of 2017
| BHC17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 February 2017 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 1 July 2015 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).
The background of this matter and the Tribunal’s decision record are accurately summarised in the first respondent’s submissions as follows:
“Relevant factual background
2. The applicant, a male citizen of China, applied for a Protection (Class XA) visa on 23 October 2014 (Court Book (CB) 1). In a statement enclosed with his application (CB 28), the applicant claimed:
(a) that he was persecuted by the Chinese government because he is a believer of “Almighty God”;
(b) his wife owned a printing business and they decided to print all the advertising material for the church and distributed those materials to each household at night;
(c) his wife had been detained by Chinese police, had not been released and told the police about his whereabouts. As a result, the applicant decided to leave China and came to Australia on a visitor visa; and
(d) if he returns, he is afraid he will be hurt by the Chinese government.
3. On 9 June 2015, the applicant was invited to attend an interview before the Department (CB 44), however the applicant did not attend.
4. On 1 July 2015, a delegate of the Minister refused the application on the basis that the delegate was not satisfied that the applicant had substantiated his claims of fear of Convention-related persecution and consequently, that his fear of Convention-related persecution was not well founded. The delegate was also not satisfied in relation to the complementary protection criterion (CB 51).
5. On 21 July 2015, the applicant sought review of the delegate's decision (CB 59), and attached a copy of the delegate's decision to his review application.
6. On 4 November 2018, the applicant was invited to attend a hearing (CB 76). The applicant appeared before the Tribunal on 21 February 2017 to give evidence and present arguments with the assistance of a Mandarin interpreter (CB 90).
7. On 27 February 2017, the Tribunal notified the applicant of its decision affirming the decision of the delegate (CB 94).
Tribunal decision
8. At the hearing, the Tribunal tested the applicant's central claim - that he was a believer of Almighty God - and rejected it, giving considerable weight to the inconsistency between the applicant's claimed beliefs and the beliefs of the Almighty God group set out in detail in the country information (CB 101 at [47]). Consequently, the Tribunal found that the applicant's claim had been made solely for the purpose of strengthening his claims for a protection visa (CB 101 at[50]).
9. Due to issues about the applicant's credibility when discussing his claims, the Tribunal found that the applicant and his wife were never involved in printing or distributing material for the Almighty God group (CB 102 at [59], and that the applicant's wife was not detained for six months because she was a member of Almighty God (CB 102 at [60]). The Tribunal also found that the applicant's wife had not been the subject of regular monitoring by the Chinese authorities because of her involvement with the Almighty God group (CB 102 at [61]), and that the applicant had not been of interest to the Chinese government (CB 103 at [ 62]). The Tribunal also did not accept as credible the applicant's claim that the authorities were enquiring as to his whereabouts and that he will be arrested and put in prison for his involvement with the group (CB 103 at [62]).
10. The Tribunal also considered whether the applicant's knowledge of some aspects of Christianity was significant, however found that the applicant may have studied aspects of Christianity before the hearing (CB 103 at [63] to [64]). However, it found that this was not significant to his claims and that even if known, would not bring him to the adverse attention of the Chinese authorities (CB 103 at [63] to [66]).
11. Accordingly, the Tribunal found that there was not a real chance that the applicant would be persecuted now or in the reasonably foreseeable future and that his fear of persecution in China was not well-founded (CB 103 at [69]).
12. The Tribunal was also not satisfied in relation to complementary protection (CB 103 to 104 at [70] to [76]).”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.
The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 13 July 2017. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant confirmed that other than a Notice of Change of Address for Service, he had not filed any other document either in accordance with those directions or otherwise.
The applicant also confirmed that he had no further documents to provide to the Court this morning in support of his application.
The applicant confirmed that he continued to rely on the grounds of his initiating application, filed on 27 March 2017. Those grounds are as follows:
1. I have been a believer of “Almighty God”
2. I have been persecuted by the China authorities because I printed the "Almighty God" related materials when I was in China. I tried to leave China and came to Australia for protection. I fear to return to China because I will surely encounter persecution by the China authorities.
3. My wife was detailed by the Chinese police and not yet released until now.
4. The Tribunal member ignored my persecution by the China authorities because he said: “The Tribunal finds that there are not substantial grounds for believing that the applicant will be at real risk of significant harm, as defined in paragraph 75 above, for any reason if he is returned to Chin.” [No. 76 of decision of Administration Appeals Tribunal.]
5. I believe the Tribunal member had bias against me and failed to consider my application according to S92R of the Migration Act 1958.
(Errors in original)
Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of any of the grounds and in support of his application generally.
I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider his claims and reach different factual findings or reach different conclusions.
The applicant agreed that Grounds 1, 2 and 3 of his application are no more than a restatement of some of his claims.
Ground 4 asserts that the Tribunal ignored his persecution by Chinese authorities based on the following statement by the Tribunal:
“76. On the evidence before it, and given the issues with the applicant’s credibility, the Tribunal finds that there are not substantial grounds for believing that the applicant will be at real risk of significant harm, as defined in paragraph 75 above, for any reason if he is returned to China.”
Paragraph 76 is the Tribunal’s conclusion in relation to its consideration of whether or not the applicant was entitled to protection under the complementary protection criteria in s.36(2)(aa) of the Act. The Tribunal noted that it had discussed in detail the reasons for finding that the applicant and his wife were not members of or involved with the Almighty God group in China. The Tribunal also referred to its finding that the applicant’s wife was not detained for six months, nor was her shop closed and she was not subject to monitoring because she was a member of Almighty God who had printed and distributed Almighty God material.
The Tribunal also found that that the applicant would not be arrested and sent to prison on return to China because of his membership of or involvement with the Almighty God group. That finding was based on the Tribunal’s comprehensive rejection of the applicant’s claims.
The Tribunal considered in detail the applicant’s claims to fear harm in China and explored those claims with the applicant at a hearing. The Tribunal summarised various exchanges that it had with the applicant at the hearing and noted matters of concern that it had about the applicant’s evidence.
The Tribunal also discussed with the applicant at the hearing relevant country information about the Almighty God group in China which it identified with specificity. The Tribunal invited the applicant to comment on the country information.
Ultimately, the Tribunal found that the applicant was not at risk of harm based on the criteria in s.36(2)(a) of the Act.
The Tribunal also noted that it asked the applicant twice if there was any other reason why the authorities or anyone else would want to harm the applicant if he was to return to China and noted the applicant’s response that there was not.
In those circumstances and in light of the Tribunal’s adverse findings, the Tribunal found that it was not satisfied that the applicant was at risk of significant harm in the terms of s.36(2)(a) of the Act and, therefore, did not satisfy the complementary criteria in s.36(2)(aa).
It is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
Further, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, the Tribunal’s findings in relation to its consideration of complementary protection were open to it on the evidence and material before it and for the reasons it gave. Those findings were based on probative evidence and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
It is also well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Accordingly, the applicant’s assertion that the Tribunal ignored the applicant’s claim of persecution by Chinese authorities is not made out.
In Ground 5, the applicant alleges that the Tribunal member was biased against him and failed to consider his application according to s.92R of the Act. I asked the applicant in what way the Tribunal was biased and the applicant said that it was because the Tribunal did not believe him and that he had told the truth.
A claim of bias is serious and requires evidence such as a transcript of the Tribunal hearing. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision and, similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggested that the Tribunal approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
At the directions hearing on 13 July 2017, the applicant was given an opportunity to file a transcript of the Tribunal hearing and was informed that any transcript of the Tribunal hearing was to be verified by an affidavit of the translator and that notice was to be given to the Court and to the other side of any recording of the Tribunal hearing which the applicant wished to rely upon. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
Further, a fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal or suggest that the Tribunal approached its task other than with a mind open to persuasion (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed). In the circumstances, the applicant’s allegation of bias is not made out.
In relation to the allegation that the Tribunal failed to consider the applicant’s application according s.92R of the Act the applicant was unable to say anything to clarify his complaint in that regard. To the extent that the applicant may have intended to refer to s.91R, I accept in their entirety the submissions of the first respondent from paragraphs 21 to 23. Those paragraphs are as follows:
“21. Section 91R was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Sch 5 Part 2 it 12, which commenced on 18 April 2015: see section 2). But that amendment applies only 'in relation to an application for a protection visa that is made on or after the day' item 28 of Schedule 5 commences (16 December 2014: see s 2). In the instant case, the applicant applied for a Protection visa on 23 October 2014 and, as such, the repeal of s 91 R does not affect his application.
22. Section 91R is relevant to the refugee criterion ins 36(2)(a) of the Act. It relevantly provided:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
23. The Tribunal found that the applicant did not have a well-founded fear of persecution for a 'Convention reason' if he returns to China (CB 103 at [67]-[69]). Contrary to the assertion implicit in the applicant's contention - that the Tribunal asked itself the wrong question - it is plain that the Tribunal asked itself the correct question. In fact, the Tribunal having found that the applicant's fear was not 'well-founded', it followed that the application for review, insofar as it was founded on the refugee criterion, failed at the threshold, and it was unnecessary for the Tribunal to consider section 91R of the Act. Accordingly, the first respondent submits that ground three should be dismissed.”
I asked the applicant if he wrote the grounds and he said that was helped by a person whose name he did not know and who he met in the Campsie public square.
None of the grounds of the application establish any jurisdiction error on the part of the Tribunal.
A fair reading of the Tribunal decision record makes clear that the Tribunal understood the claims being made by the applicant and explored those claims with the applicant at a hearing. The Tribunal discussed with the applicant matters of concern that he had about his evidence and noted the applicant’s responses. The Tribunal identified the relevant law in considering whether Australia has protection obligations to the applicant.
As stated above, the Tribunal made findings based on the evidence and material before it which were open to it for the reasons it gave. The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere and the proceeding before the Court should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 18 June 2019
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