BHP16 v Minister for Immigration

[2017] FCCA 1115

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHP16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1115

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by actual bias in the form of prejudgment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 425(2)(a)

Federal Circuit Court of Australia Act 1999 (Cth), s.13

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZRNJ v Minister for Immigration & Citizenship (2014) 315 FLR 120; [2014] FCCA 782

First Applicant: BHP16

Second Applicant: BHS16

Third Applicant: BHT16

Fourth Applicant: BHU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1365 of 2016

Judgment of: Judge Smith

Hearing date: 3 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Sydney

Delivered on: 2 June 2017

REPRESENTATION

The second applicant appeared in person

Solicitors for the Respondents: Mr T Shaw, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1365 of 2016

BHP16

First Applicant

BHS16

Second Applicant

BHT16

Third Applicant

BHU16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The first and second applicants are citizens of China and are husband and wife. The third and fourth applicants are their children. The first applicant applied for a protection visa on 8 February 2011 after his student visa expired in December 2010. The second and third applicants applied for a protection visa on 5 September 2011. The fourth applicant made a protection visa application on 26 September 2012. Each of those applications was refused by a delegate and affirmed on review.

2. In March 2012, a Complementary Protection criterion was inserted into the Migration Act 1958 (Cth) (Act). In light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (SZGIZ) the first applicant was entitled to lodge a further application relying on the new criterion and he did so on 9 January 2014.

3. The second, third and fourth named applicant were included in that further application.

4. The first applicant claimed that he would face harm on return to China for three reasons: first, because his association with his father and brother. He claimed that they had previously experienced harm at the hands of security guards following a wage dispute, that his brother was on a “black list” for disseminating political material sent to him by the first applicant, and that his father was implicated in anti-government activities.

5. The second claim was that the first and second applicants were unmarried and had children. He claimed that they would be forced to pay social compensation which they could not afford and that their children would be cast as “black children” and suffer as a consequence.

6. The third claim was on the basis of the second applicant’s adherence to the Christian (Shouter) faith.

7. The delegate of the Minister refused that application on 27 June 2014 and the applicants applied to the Administrative Appeals Tribunal for review of that decision.

8. The first and second applicants attended two hearings before the Tribunal on 15 October 2015 and 4 May 2016 to present arguments and give evidence in support of their application. On 12 May 2016 the Tribunal made its decision affirming the decision of the delegate.

Tribunal’s findings

1. The Tribunal dealt with each of the applicants’ claims in turn.

2. The Tribunal doubted the truthfulness of the first applicant’s claim about the past experiences of his brother and father. However, it found that, even if it were to accept them, it would not be satisfied that there was a real risk of significant harm based on the claims. This was because of the period of time that had passed since those incidents and the fact that the first applicant was not involved in his father’s business in China.

3. The Tribunal rejected the claims concerning the detention of the first applicant’s brother because of the contradictory evidence given by the first applicant about the dates and duration of the detention. The Tribunal rejected the claim that the first applicant had sent his brother political material because the applicant had given inconsistent evidence about when he sent the material, he had provided no evidence of sending the material and did not satisfactorily explain why he would send such material so soon after his brother had been detained when he knew it would get his brother into serious trouble.

4. The Tribunal accepted that the second applicant had attended the Local Church in Australia. However, it did not accept that she was a genuine follower of the Church or that she would attend or follow the Church upon return to China. First, it found that the fact that she commenced her involvement in the Church just after her partner was taken into immigration detention and had lodged a protection visa application, highly suspicious and indicative of a move calculated to strengthen a protection claim of her own. Secondly, it found that the fact that she had children but resisted marriage was inconsistent with the teachings of the Church. Thirdly, it was not satisfied that she continued to attend the Church.

5. The Tribunal also rejected the claims based on the fact that the first and second applicants had children out of wedlock. While the Tribunal accepted that the first and second applicants may have to pay a social compensation fee in respect of the third applicant, it did not accept that they would be unable to pay the fee or that the requirement to pay amounted to significant harm. Part of this reasoning was based on the finding that the fee would likely be in the range of 4456 – 7427 yuan (AUD $903 - $1678) (see [134] of the Tribunal’s reasons). That figure was based on country information concerning fees imposed on rural parents (see [123]). I will return to that matter later in these reasons.

6. The Tribunal also found that the third applicant would be able to obtain a hukou, or household registration, and so have access to basic services irrespective of whether her parents paid the fee.

7. For those reasons the Tribunal found that there were no substantial grounds for believing as a necessary and foreseeable consequence of being returned to China that the first, second and third applicants would suffer a real risk of significant harm under sub-s.36(2)(aa) of the Act. As a result, it was not satisfied that the applicants satisfied the criteria for the grant of a protection visa and affirmed the delegate’s decision.

Consideration

1. The applicant raised the following grounds in the application:

   1.On the surface, the Tribunal member has arranged two hearings for us. As a matter of fact, the Tribunal member has already decided to refuse our application beforehand, the hearings were just for going through certain formality.

   2.After the second hearing, we provided further evidence in support of our application on 10 May 2016. Just two days after that, the Tribunal completed its long decision with 31 pages on 12 May 2016. We believed that it was significant evidence to prove that the Tribunal made its decision in advance.

   3.We believe that we are genuine refugees. But the Australian protection obligations have been denied unfairly and unfairly and incorrectly due to the Tribunal’s mistakes against the law.

2. These paragraphs appear to raise only one matter, namely, that the Tribunal’s decision was affected by actual bias in the form of prejudgment. The only basis given for such a serious complaint is that the Tribunal gave a lengthy decision only two days after the second hearing. That fact alone cannot, and in this case, does not establish actual bias. Nor does it establish any other jurisdictional error.

3. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72]; [2001] HCA 17 (Gleeson CJ and Gummow J).

4. The fact that a decision maker gives a lengthy decision shortly after hearing a matter only indicates that he or she has made a decision about the matter and has been able to express the reasons for that decision in a short period of time. Without more, it does not indicate any commitment to a conclusion previously formed that cannot be changed. It might reveal that the decision maker had come to a particular view about the merits of the matter prior to, or during the course of the hearing, but that is not sufficient to establish bias: there must be an inability or unwillingness to change that view regardless of what transpires at the hearing or in the balance of the proceedings. For those reasons, the fact relied on by the second applicant does not support her complaint.

5. Those submissions apply with even greater strength to any argument that there was a reasonable apprehension of bias. Any well-informed observer would understand that the Tribunal had to have had an initial view adverse to the application. If it did not there would have been no hearing: sub-s.425(2)(a) of the Act. This means that the Tribunal must have considered all of the material before the hearings. In light of that, the fact that the Tribunal made its decision quickly after the second hearing, in the absence of anything else, has no logical bearing on the deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]; [2000] HCA 63.

6. However, it is necessary to look beyond the simple fact that the Tribunal delivered its reasons so soon after the second hearing. While it is ordinarily commendable for a decision to be made quickly, undue haste might, in some cases, lead the decision maker to overlook claims or to fail to give proper consideration to the application at hand.

7. The Tribunal’s reasons in this case show that it did not fall into any such error. Further, they support my view that the Tribunal’s decision was not affected by bias.

8. In its statement of reasons the Tribunal not only records in considerable detail the evidence given at each of the hearings ([21] – [84] and [86] – [91] of the Tribunal’s reasons), but also refers to the documents that were provided by the applicants to the Tribunal after those hearings: see [85] and [92]. Further, its reasons show that the Tribunal assessed the evidence and material including that given at and after the two hearings.

9. The applicants’ ground is rejected. There remains one issue that was not raised by the applicants but which was the subject of written submissions after the hearing of this matter.

10. As I noted at [13] above, part of the reason for which the Tribunal found that the first and second applicants would be able to pay any social compensation fee was it finding that the fee would be in the range of 4456 – 7427 yuan (AUD $903 - $1678): see [134]. That figure was based on country information concerning fees imposed on rural parents: [123]. As both the first and second applicants noted their birthplace as Fuqing, I raised the question whether compensation payable by rural parents had any logical bearing on what might be payable by the applicants. I made orders at the hearing on 3 May 2017 inviting both parties to file further written submissions addressing this point, which they did.

11. In addition to filing further written submissions, the Minister filed an affidavit annexing a transcript of the hearing that took place on 15 October 2015. That was inappropriate in the absence of leave. Further, in the absence of consent from the applicants, the Court would have to give leave to re-open the proceedings in order for the affidavit to be read. It is not in evidence simply because it is filed.

12. I do not mean this as any criticism of the Minister or his solicitors. They were faced with a point that had not been raised before the hearing and, they submit, had available evidence that could readily address the issue. However, subject to some exceptions, the Court must conduct proceedings in open court: s.13 Federal Circuit Court of Australia Act 1999 (Cth). Further, both parties must be afforded procedural fairness which would ordinarily require the applicants to be given an opportunity to adduce further evidence or to test the evidence relied on by the Minister.

13. In those circumstances, I have considered whether there ought to be a further hearing.

14. In deciding that there should be no further hearing, the critical factor is that it is possible to deal with the issue without regard to the affidavit filed by the Minister. If it were otherwise, it would be unfair to one or other of the parties not to have a hearing.

15. I have reached this view because there is insufficient material before the Court to satisfy me that there was no rational connection between the material relied on by the Tribunal concerning social compensation fees and the position of the first and second applicants. The applicants bear the onus of establishing any jurisdictional error and have not met that onus.

16. While both the first and second applicants stated in their application form that they were born in Fuqing[1], the first applicant’s address in China was given by reference to a number, presumably a street, a town, Fuqing City and then Fujian Province. There is nothing in the material that shows that this place was not rural or, more specifically, that people living there would not be considered “rural parents” for the purposes of determining the amount of social compensation fee that was payable for having a child out of wedlock.

    [1] See Court book pp.1 & 16.

17. In her submissions on this point, the first and second applicant accepted that they had come from a rural area in China, but contended that the Tribunal had erred by assuming that they would return to the same address. The difficulty with that submission is that the applicants did not suggest that they would go to any other part of China. Given that, and the fact that at least part of their claims were based on local events, the Tribunal made no mistake in assuming that they would return to where they had formerly lived.

1. There is no jurisdictional error in the Tribunal’s reasons. The application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     2 June 2017