Bhe18 v Minister for Home Affairs
[2018] FCCA 3442
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHE18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3442 |
| Catchwords: MIGRATION – Whether the Administrative Appeals Tribunal was biased – allegation of bias not made out – whether the Administrative Appeals Tribunal took into account an irrelevant consideration – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Naff v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1 SCAA v Minister for Immigration [2002] FCA 668 SZTBJ v Minister for Immigration [2015] FCCA 580 |
| First Applicant: | BHE18 |
| Second Applicant: | BHF18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 706 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2018 |
REPRESENTATION
| The First Applicant appeared in person and on behalf of the Second Applicant |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The Application be dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 706 of 2018
| BHE18 |
First Applicant
| BHF18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal, the Second Respondent, made on 19 February 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Home Affairs, made on 3 September 2015 to refuse to grant the Applicants Protection (Class XA) Visas.
The Applicants are mother and daughter, and are citizens of China from Hebei province. The First Applicant is the mother, and the Second Applicant, her daughter. The daughter is now 31, born in 1987. They arrived in Australia on FA 600 visitor visas on 2 August 2014. On 20 October 2014, the First Applicant applied for the Visas, listing the Second Applicant as a dependant, having no claims of her own, relying on the First Applicant’s claims.
The Tribunal
As I have said, the Delegate refused to grant the Applicants the Visas, and the matter then came before the Tribunal. The Applicants were invited to appear before the Tribunal on 15 February 2018. The First Applicant appeared before the Tribunal on that date to give evidence and present arguments. She was assisted by a Mandarin speaking interpreter. The First Applicant indicated that the daughter was “unavailable”. From the Tribunal decision record, it appears that the First Applicant did not request an adjournment, and did not provide an explanation as to why her daughter was not present. Indeed, at [18] of the Tribunal’s decision, the Tribunal member records that when he pressed the First Applicant for more detail about harassment of her daughter, the First Applicant did not provide any more detail, and at no time asked for a further opportunity for evidence to be taken from her daughter.
It is apparent from the Tribunal’s decision that the Tribunal asked the First Applicant about her claims, and put to her the concerns the Tribunal had with inconsistencies in her evidence, and factors that tended against the reliability of her substantive claims.
Claims
The Tribunal set out the First Applicant’s claims, and its discussion with the First Applicant regarding these claims at [6]-[20] of its decision. The claims were set out in her statement accompanying the application for the Visas, to which I have had regard, and were supported by a summary of claims on review before the Delegate, and, as I have said, were also before the Tribunal.
By reference to those records, the First Applicant’s claims can be summarised as follows:
(a)since 1983, the First Applicant worked at the Baoding textile factory, which is a national-owned factory;
(b)she was promoted to manager of the child‑care facility in the factory, and during reforms a lot of managers and officials were trying to take national assets as their own, a practice which she was against;
(c)in May 2008, the director of the factory where she worked offered management-level officials the option to own the factory. Factory officials came to the First Applicant and offered her benefits in exchange for her support of the proposal. The First Applicant was opposed to the reforms and did not want to “betray” the workers;
(d)in October 2008, the First Applicant wrote many letters to the disciplinary office of the government exposing their actions of taking national assets, but she did not receive any response;
(e)from February 2009 to October 2013, the First Applicant gathered hundreds of workers to petition the Baoding government; during this time she was threatened and beaten and was eventually dismissed from the factory;
(f)on 16 January 2014, the police came to the First Applicant’s home; she was beaten and questioned and forced to admit she was defaming the government. She was detained for one month, and she claimed that she was released under fortnightly reporting conditions which the Tribunal noted she implicitly claims she breached by coming to Australia;
(g)the police began to harass her daughter, and demanded that she also undergo police reporting conditions, and the First Applicant claimed to the Department that she decided in the circumstances to bring her daughter and herself to safety in Australia.
Notwithstanding that she made no mention of these matters in her protection claim statement, or in her interview before the Delegate, the First Applicant made two further claims at the Tribunal hearing: that she paid a significant bribe – 250,000 RMB – in order to gain authorised departure from China (see [16] of the Tribunal’s decision); and that the police sometimes harassed her husband (see [17] of the Tribunal’s decision).
As I have noted, the First Applicant had not suggested at any earlier time that she had paid a bribe to leave China, and when the Tribunal asked her, she was unable to resolve the apparent inconsistency.
The Tribunal put to the First Applicant factors that suggested to the Tribunal that she did not face a real chance of persecution, at least by the time she left China in 2014, if at any time at all, as follows (at [16]):
[that] she had enjoyed stability of domicile over decades in a house her husband still occupies, she had been able to find work, including full‑time work in the new private economy after the factory closed and she had left China under the full view of its authorities.
The Tribunal found that the First Applicant was able to leave China lawfully on her own passport, and it gave weight to the legality of her departure (see the Tribunal’s decision at [21]).
In relation to her new claim that the police sometimes harass her husband, the First Applicant said the police started harassing her husband after she came to Australia. In response to questioning by the Tribunal she said she believed that the harassment occurred because her husband “was quite honest.” The Tribunal member put to the First Applicant that the claims – that authorities harassed her, her daughter, and her husband – did not appear to have stopped her getting a 6-day a week job in 2014. In reply she said local authorities did not know she was working because China is a big country.
The Tribunal recorded that when invited to, the First Applicant did not provide more details about the harassment of her daughter, and was unable to provide any specific details about the threats, and demands attended to be threats, and who was making the treats. The Tribunal observed at [19] that “[t]he evidence … was neither clear, nor strong in detail.”
The Tribunal noted that the First Applicant essentially told the Tribunal that her petitioning activity did not change between 2009 and 2013. She gave the impression of a campaign that over 5 years or so got her and her co-signatories nowhere.
The Tribunal member recorded at [12] that he asked the First Applicant why the local authorities took around 5 years to arrest her in a matter that she said involved defaming the government back in, and frequently since, early 2009. The Tribunal put to the First Applicant that it was hard to see why in the circumstances the government office that had simply ignored her for 5 years, changed its approach and brought in the police to arrest her. In response, the First Applicant did not answer the concern raised. Instead, she said that she did not think the matter was such a serious one until the police started harassing her daughter.
The Tribunal records at [12] that it was struck by the First Applicant’s evidence as being highly incongruous in the claimed circumstances. The Tribunal put to the First Applicant that practically everybody she knew who had been laid off, including herself, had eventually been able to find work in the new economy, and had not been prevented from keeping such work. The Tribunal recorded that the First Applicant said her situation was different because she had organised the petitions. The Tribunal recorded that it asked the First Applicant if she could provide any evidence supporting her claim about having petitioned, and she said she could provide no evidence of such activity. So too, when asked, the First Applicant said she had no evidence to support any of the claims about having been arrested, detained, accused of defaming the government, and placed on reporting conditions (see the Tribunal’s decision at [14]).
She confirmed with the Tribunal that she had left China legally, and during the exchange regarding her ability to leave the country, and as to whether her issue with the authorities was or was not a serious issue, the Tribunal recorded that the First Applicant appeared to change her position, and say that for ordinary people like her it was a serious issue. The Tribunal stated that it was difficult to find that the First Applicant was being consistent about the trouble she claimed to face with the authorities in China.
In relation to the evidence about her daughter being harassed, the Tribunal observed that the detail that she had put to the Department that the police had asked her daughter to report to them was missing from the evidence before it. In reply, the First Applicant said that she had been telling the truth (Tribunal decision at [20]).
In relation to the second additional claim regarding her husband, the Tribunal came to the conclusion that the evidence was improvised (at [22]). The Tribunal was not satisfied that the First Applicant was a reliable witness, and found her evidence to be vague and contradictory, and on this basis did not accept any of her substantive claims, including about the treatment of the Second Applicant (at [22]-[23] of the Tribunal’s decision).
The Tribunal found that the First Applicant’s refugee claims failed, and, accordingly, so did the Second Applicant’s (at [24]).
Based on its anterior findings, the Tribunal found that the First Applicant’s complementary protection claims also failed. In considering the complementary protection criterion, at [28] the Tribunal beneficially took into account that the Second Applicant was a minor (although in fact, she was not, and is not, a minor). However, it remained unsatisfied that the Second Applicant met the complementary protection criterion (at [29]). Notwithstanding that the Tribunal was mistaken in attributing to the Second Applicant the status of a minor, that does not change or render erroneous the Tribunal’s conclusion in that regard. This is because, giving the Second Applicant the benefit of the status of a minor when she was not, it follows that without that benefit the Second Applicant could be in no better position.
Proceedings in this Court
The Applicants commenced judicial review proceedings in this Court on 16 March 2018. The application is stated, on its face, to be prepared by the Second Applicant, although the Second Applicant did not appear in Court today. Both Applicants have signed the application, which matter I confirmed with the First Applicant today.
The Application raises 4 grounds of review, set out below (without alteration):
1.The AAT judge was not fair to me and has bias against me.
2.The AAT judge said because I was working 6 days a week now so my health condition was good so I would not be likely to be persecuted. It is unfair as this is not relevant to my claims that I could be facing harms. I can still be persecuted even if I was trying to work hard to feed my family.
3.The AAT judge said that I can bribe the travel agent to come to Australia so I should be worth of a credible applicant. This is also unfair and prejudiced against me.
4.The AAT judge seems to be very personal and never allowed me to talk more than three sentences when I was giving testimony. This interrupted me from giving good evidence.
Before me, the First Applicant appeared unrepresented but with the benefit of a Mandarin-speaking interpreter. I confirmed with her that she relied on all 4 grounds of the application. I explained the costs consequences to her of proceeding, and the Minister confirmed that even if the First Applicant now discontinued, the Applicants would still be liable for costs in the same amount.
Although the First Applicant appeared undecided whether there would be any benefit or otherwise in withdrawing at this late stage, after some discussion about her desire to stay in Australia for Christmas festivities, and that it would thereafter be difficult to travel to China because it would then be festival time in China, she determined that it was preferable that the matter be heard and determined before me today. The First Applicant made no application for adjournment, and indeed there would not have been any grounds for such an application on the material, or lack of it, before me.
When I asked the First Applicant where the Second Applicant was, she was unable to say. She said she was far away. She could not remember where. When I pressed the First Applicant about the whereabouts of her daughter, and whether she would be appearing today, the First Applicant said that the daughter was somewhere in Sydney but that she had something to do. I confirmed with the First Applicant that she was here today representing herself and her daughter.
I asked the First Applicant to tell me what ground 3 was about as it was unclear to me. The First Applicant said to the following effect: that it meant that the Tribunal was unfair to her, or she was unfair to the Tribunal member. When pressed, the First Applicant then said to the effect that: “The interpreter told me not to speak too fast as the member wouldn’t like it, and not to speak in too long sentences.” The First Applicant said she was very nervous talking slowly. She said she couldn’t say anything else about what she was unhappy with, and she trusted that this Court would be fair, and she said that what she told them, by which I understand her to mean the Tribunal, was the truth.
Later, in submissions in answer, the First Applicant said leaving China with her own passport is very easy to do: as long as you spend the money, you can get it. I am paraphrasing what I understand the First Applicant to say. When I pressed the First Applicant as to whether she felt there was anything she was not able to say to the Tribunal, she responded with “What do you mean?” and “I don’t quite understand.” She indicated that whatever questions were put to her, she answered the questions.
Ground 1 & 4
Notwithstanding that the grounds are lacking in detail, I propose to deal with grounds 1 and 4 together as they both raise claims that the Tribunal was not fair and had bias, in the case of ground 4, by not allowing the First Applicant to talk more than three sentences when she was giving testimony. Grounds 1 & 4 contend, in essence, that the Tribunal did not afford the Applicants a real and meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act 1958 (Cth).
The only evidence before this Court are the documents from the Tribunal and Department records collated by the solicitors for the Minister. By order of Registrar Cho in this Court made 9 April 2018, the Applicants were given the opportunity by 14 May 2018 to file any evidence in support of their claim. They did not do so. In particular, they were given the opportunity to obtain and file a copy of the transcript of hearing before the Tribunal. No evidence has been filed.
At the hearing today, I asked the First Applicant whether she had any evidence or documents she wished to give to the Court. She indicated she did not. The Tribunal’s decision indicates that the First Applicant was provided with an opportunity to give evidence and to present arguments at the hearing. The decision records the interactions of the Tribunal member and the First Applicant in relation to the First Applicant’s claims, and in expanding upon those claims.
In relation to the Second Applicant, the Tribunal’s decision records that the First Applicant indicated to the Tribunal at the hearing that the Second Applicant was “unavailable”. As I have said, no adjournment was sought, nor did the First Applicant ask for a further opportunity for evidence to be taken from her daughter.
A claim of bias is a serious claim to make. It should be particularised and substantiated by evidence. An example of such evidence could be a transcript of the hearing record.
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 [2004] HCA 62; (2004) 221 CLR 1.
It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of an applicant does not give rise to an inference of bias, or by itself suggest that the decision‑maker approached its task other than with a mind open to persuasion: for example, SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J.
There is nothing that has been said today which raises any suggestion of bias or unfairness to the extent that the applicants so allege against the Tribunal. At most the First Applicant has said that the interpreter at the hearing before the Tribunal asked the First Applicant to speak slowly, and speak in short sentences. There is no claim by the First Applicant that she was not able to put any of the matters she might wish to put to the Tribunal. There is no evidence that the conduct of the Tribunal hearing was other than fair, and indeed taking the evidence slowly, and asking that the evidence be put in short sentences, might well (had that been the case), be indicative of a Tribunal trying very hard to understand the claims that an applicant might make, and to give full consideration to those claims, or of an interpreter seeking to better understand the task of interpretation.
I should say further that it is apparent from the Tribunal’s decision that the First Applicant was provided with the opportunity to respond to identified factors that might tell against her protection claims, and that the First Applicant took the opportunity to change her evidence, and to contradict it, but that those changes did not resolve apparent inconsistences (see, for example the Tribunal’s decision at [15]-[16], and [19]-[20]).
In the present case there is simply no evidence of how the Tribunal conducted itself, and in the absence of such evidence these grounds must fail. No jurisdictional error is identified.
A fair reading of the Tribunal decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. In my view there is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceeding, the matters in issue, and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to determining the application for review.
As the Minister’s solicitor submitted, the conduct of the Tribunal, as revealed by the decision record, demonstrates that the First Applicant was not denied a real and meaningful opportunity to participate in the Tribunal hearing, nor does a fair reading of the Tribunal’s decision disclose any pre-judgment on the part of the Tribunal, in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented”: Minister for Immigration v Jia Legeng [2001] HCA17; (2001) 205 CLR 507 at [72], see also [69]-[71].
Ground 2
Ground 2 appears to contend that the Tribunal took into account an irrelevant consideration, namely that the First Applicant was working 6 days a week now, so her health condition was good, and she would not be likely to be persecuted. Even if it could be said that the Tribunal did so say, and it is not apparent from the Tribunal record that it did, I note that this ground appears to be directed to the Tribunal’s exchange with the First Applicant during the hearing about her employment in the years following her dismissal from the factory.
The decision record indicates that the First Applicant’s evidence changed in this respect. Initially, she said that she had been helped by “relieves” (by which I understand the Applicants to mean relations, or relatives), and friends. She then said that she worked 2-3 8 hour shifts per week at a restaurant, through a friend of a friend’s son, although not every week, but she worked in that restaurant for “over almost four years”.
After the Tribunal put to her that it might have been difficult for her to satisfy the conditions for a visitor visa with such a meagre and irregular employment background, she then claimed to have worked full time, 6 days per week, in a privately run child-care centre for 6 months before coming to Australia: see the Tribunal’s decision at [11].
The Tribunal put to the First Applicant that the problems she claimed to have had with authorities did not appear to have stopped her getting a 6 day per week job in 2014: see the Tribunal’s decision at [17].
The Tribunal accepted that the First Applicant was laid-off when the factory was privatized in 2008, and, thereafter, was not prevented by the authorities from working in the private sector: see the Tribunal’s decision at [21].
For a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; SZTBJ v Minister for Immigration [2015] FCCA 580 at [95].
As the First Applicant’s protection claims were based on claims of detention by authorities, and earlier, of the consequences of petitioning the Baoding government on beliefs of workers against privatisation of the factory she worked in, that she was able to find work in the private sector, or market economy, thereafter, is, I find, relevant to her claims. It follows that ground 2 does not disclose jurisdictional error. Ground 2 is not made out.
Ground 3
As to ground 3, to the extent that it raises anything over and above ground 1 and ground 4, it is incomprehensible to me. My exchange with the First Applicant today has not clarified the matter.
The Minister submits that contrary to the Applicants’ contention in ground 3, it was the First Applicant who, at the Tribunal hearing, introduced a new claim: that she paid a bribe in order to gain authorised departure from China, and coming to Australia.
The Tribunal did not accept this claim, and found that the First Applicant was able to leave China legally, “under the view of the country’s authorities”: see at [21]. The Tribunal’s credibility findings were open to it, for the reasons it gave, namely that the First Applicant’s substantive claims were variously unsupported, vague and contradictory: see decision at [22].
The Minister’s solicitor submits that ground 3 does not establish any jurisdictional error. Even if ground 3 can be understood at its most beneficial, as the Minister’s submissions contend, I agree. Ground 3 does not establish any jurisdictional error.
For completeness, I should say that in any event, I do not find any jurisdictional error in the Tribunal’s decision.
Conclusion
I have concluded that none of the grounds are established, that the application must be dismissed, and that the Applicants should pay the Minister’s costs. I will so order.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 3 December 2018
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