BLN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 624
•27 May 2022
FEDERAL COURT OF AUSTRALIA
BLN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 624
Appeal from: BLN16 v Minister for Immigration [2019] FCCA 3191 File number: NSD 1900 of 2019 Judgment of: PERRAM J Date of judgment: 27 May 2022 Catchwords: MIGRATION – where Appellant from China – where application for protection visa – where expropriation of land – where visa refused – whether jurisdictional error – whether denial of procedural fairness – whether apprehension of bias or actual bias Legislation: Migration Act 1958 (Cth) s 422B Cases cited: BLN16 v Minister for Immigration [2019] FCCA 3191
Charisteas v Charisteas [2021] HCA 29; 393 ALR 389
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 27 Date of hearing: 22 March 2022 Counsel for the Appellant: The Appellant did not appear Counsel for the Respondents: Mr A Moss Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1900 of 2019 BETWEEN: BLN16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
INTRODUCTION
This is an appeal from the Federal Circuit Court in a protection visa case. The Appellant’s basic claim is that he is a farmer from China whose farm was expropriated to make way for a highway. The amount of compensation for the appropriation was very low. When he complained about this, he was arrested and detained. He subsequently fled the country on the basis that he would continue complaining about what had happened and would therefore be subject to further acts of arrest and detention. The First Respondent’s (‘the Minister’) delegate did not believe that the Appellant’s farm had been appropriated for the highway and hence did not accept that he had either sought compensation or had been arrested and detained for doing so. The Administrative Appeals Tribunal (‘the Tribunal’) reached the same view. The Federal Circuit Court refused an application for judicial review. From its orders, the Appellant now appeals to this Court. For the reasons which follow, the appeal should be dismissed with costs.
THE APPELLANT’S PROTECTION VISA APPLICATION
The Appellant was born in 1972 in Hebei Province in the People’s Republic of China. He married his wife in 1997 and has three children, one of whom was married at the time of his application for the protection visa. He enclosed a copy of his passport with the application. The visa application was made on 4 May 2014 in Sydney. He had entered Australia at the airport at Melbourne on 26 April 2014. He had previously obtained an offshore tourist visa on 17 April 2014 from the Department’s Beijing Office. At that time he was travelling on a passport issued by China. On his visa application, he noted that he had held another passport which had been lost. Although the form asked him to identify any other countries that he had ever entered, he failed to disclose that he had once visited Japan and South Korea a number of years before.
On 12 May 2014, a few days after he lodged his application for the protection visa, the Department of Immigration and Border Protection (‘the Department’) notified the Appellant that he had been granted a bridging visa. The basis for the Appellant’s application concerned events which occurred in Gaocheng City in Hebei Province in May 2013. According to the Appellant, he and his family are farmers and do not have any higher education. They live in Hongqidajie Hanjiawa village. Their farm consists of 3.16 acres in Gaocheng City on which they derived income from the growing of corn and wheat crops and pig husbandry. This land was subject to compulsory acquisition by the government as a result of which they lost their source of income. The purpose of the acquisition was to build a highway connecting Beijing, Hong Kong and Macau. The effect of the appropriation was to take all the farming land but to leave the land on which their house was situated.
This state of affairs led the Appellant and others to go to the Gaocheng Complaints Bureau to lodge a petition about it. Three concerns were expressed in the petition: how much compensation were they entitled to; whether they owned their land for life; and how they were to eat and clothe themselves. They were informed that the compensation to which they were entitled was 64,000 RMB per acre; that, no, land was not for life and that there would no other compensation. Having received this grim news, the Appellant says that he returned home.
Subsequently to these events, in October 2013, he wrote a petition which he (and others) intended to lodge with the Complaints Bureau in Shijiazhuang City (also in Hebei Province). For this purpose, he and his compatriots hired a car and set out to travel to Shijiazhuang City. However, before they could complete this journey, they were intercepted by an official from the Gaocheng City Complaints Bureau and arrested. The official discovered the further petition. The Appellant says that he and his fellow travellers were then incarcerated at the ‘Petitioners Admonition Centre of Gaocheng City’ which he says was a detention centre in which the staff were civilians, not police. In this place, he says he was kept for seven days (later he was to say it was nine days). During this time he says he ‘suffered insults inside’. It is not clear to me whether by this the Appellant intended to convey that he was assaulted or whether he was insulted. In any event, he says that he eventually agreed that he would not go to Shijiazhuang City to lodge the petition. He was then released.
The Appellant says that he was then kept under surveillance by the Gaocheng City Complaints Bureau. In light of these developments, he says that he decided to approach an agency to assist him to flee overseas. In his application, he identified what he feared would happen to him if he returned to China. It was that what had happened to him would happen again. This was because he would find a way to lodge another petition again and then he would be arrested and detained. He specifically identified that the persons who would inflict the harm on him would be officials from the Gaocheng City Complaints Bureau.
THE DELEGATE’S DECISION
On 12 May 2014, the Department acknowledged receipt of the Appellant’s application and requested information. On 2 January 2015, the Department wrote to the Appellant and invited him to an interview. The Appellant speaks Mandarin and he was informed that a Mandarin interpreter would be present at the interview. The interview was to take place in Sydney on 27 January 2015.
At the interview, the Appellant was asked about the circumstances of his detention in October 2013. He told the delegate that he had been detained for nine days by officials from the ‘the Letters and Visits Bureau’ (in his application he had said he was detained for seven days). The delegate was familiar with this office and the system of complaints which it manages, which is also known as the ‘xinfang system’.
On 5 February 2015, the Appellant’s application for the protection visa was refused. In the delegate’s decision record, it was accepted that the Appellant was who he said he was and that he was from China. The delegate then set out the claims by the Appellant in his protection visa application (which I largely have set out above). The delegate did not accept the Appellant’s version of events. He did not think it plausible that having approached the Gaocheng Complaints Bureau about the question of compensation and having written a letter to the Complaints Bureau in Shjiazhuang City he would have been arrested (the Appellant’s version was actually that he had written the letter and was conveying it to Shijiazhuang City when he was intercepted – however, this error is probably in favour of the Appellant). The delegate also thought that the Appellant’s account was inconsistent with country information available to the delegate which indicated that persisting with petitions to the central government in Beijing carried a risk of arrest. That does not demonstrate, however, that the act of petitioning local authorities does not also carry such a risk. In any event, the delegate put this to the Appellant whose response was that the arrest was most likely associated with embezzlement as many others who had complained had had been arrested too.
The delegate was also unimpressed that the Appellant, a pig farmer, was unable to identify clearly the key government departments involved in the petitioning process. Other people might be less unimpressed by this failure. The delegate also pressed the Appellant on what his concerns were if he were returned to China and was told that he was concerned that he would be arrested again if he continued petitioning. The delegate was unimpressed by this because Chinese law permits Chinese citizens to report local official abuses to higher levels of government. The delegate had noted, on the page before, that complaining to higher authorities carried a risk of arrest but did not make that observation at this point. The delegate was also unimpressed that the Appellant had been able to leave China without incident from which she concluded that he had done so for economic reasons.
Ultimately, the delegate concluded that the Appellant’s land had not been expropriated because there was no record of the government expropriating land in Hebei Province in 2013 to build a highway connecting Beijing, Hong Kong and Macau. For my part, this reasoning is more persuasive. The delegate also concluded that the Appellant had never petitioned the local authorities as he claimed and that he had not been detained as he alleged which plausibly flows if the highway never existed. Since he had left without incident, the delegate also concluded that he was of no interest to the authorities. Having made those findings the delegate concluded that he was not entitled to a protection visa on the basis that he was a refugee or on the basis of complimentary protection.
One matter which the delegate did not act on was that the Appellant had failed to include in his application the fact that he had once visited Japan and South Korea. There was a specific question in the application form which raised whether he had visited any other country and the Appellant’s answer to that question did not reveal these trips. However, the delegate did not act on this information.
THE APPELLANT’S APPLICATION FOR REVIEW BEFORE THE REFUGEE REVIEW TRIBUNAL
On 24 February 2015, the Appellant lodged an application for review with the Refugee Review Tribunal (now a part of the Tribunal) which confirmed receipt on the same day. The Tribunal wrote to him on 4 April 2016 and invited him to a hearing to present evidence and arguments. The hearing was to take place on 12 May 2016 in Sydney. The hearing commenced at 8.28 am and concluded at 9.22 am. The hearing record states that the hearing took 2.5 hours. The Appellant was provided with a Mandarin interpreter. On 16 May 2016, the Tribunal refused the review application and affirmed the decision of the delegate.
The Tribunal began its consideration by a close examination of the Appellant’s prior activities as a tourist. At question 35 on his application for the protection visa he had been asked to give details of all the countries that he had formerly resided in, travelled to, or transited through, before arriving in Australia. He answered this question ‘CHINA’ and that he had departed China on 26 April 2014. However, before the delegate the Appellant had said that he had travelled as a tourist to Japan and South Korea in November 2011 for one week. He subsequently told the Tribunal at the hearing that he had travelled to Japan about 10 years ago which, at that time, was around 2006. The Tribunal recorded its views about this:
24. The Tribunal asked why, if he had travelled to Japan as a tourist before he came to Australia, he had not disclosed that fact in his application form. He said he thought it didn’t matter whether he disclosed that information or not. While the issue of whether or not he travelled to Japan in the past is not a critical factor in the Tribunal’s assessment of his claims about events in China in 2013 as outlined below, and while the exact time of any such travel is also not a critical factor in that assessment, the fact that the applicant failed to give a truthful answer about his past travel and later gave inconsistent evidence about that travel undermines the applicant’s overall credibility.
The Tribunal was unimpressed also by these matters:
·the Appellant told the delegate that he had been detained at a detention centre at ‘130 Zhou Lu Street in Gaocheng city’ but told the Tribunal it had been in Gong Ye Road;
·the Appellant told the Tribunal that he had been detained for nine days but in his protection visa application he had said that he had been detained for seven days;
·the Appellant told the Tribunal that he had been detained twice: once when he first complained to the local authorities, and a second time when he was travelling to lodge the petition. However, in his protection visa application, the Appellant had referred to being detained only once; and
·the Appellant had told the delegate that the highway was being constructed by ‘Bureau 19 of the Chinese Steel Corporation’ but told the Tribunal that it was the ‘China Road and Bridge Bureau’.
It therefore concluded that the Appellant was not a witness of truth. Further, although it accepted that that there was a Beijing-Hong Kong-Macau highway, it thought that it had been completed in October 2004. Since it had been completed in 2004, it was implausible that the Appellant’s farm had been appropriated in 2013 to make way for it. It is difficult to fault this reasoning. In light of these matters, the Tribunal did not believe the Appellant. It therefore concluded that there had not been any appropriation of the Appellant’s farm, that he had not lodged any petitions about the non-existent appropriation, and that he had not been detained for lodging a complaint he did not lodge. It therefore affirmed the decision under review.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 14 June 2016, the Appellant commenced judicial review proceedings in the Federal Circuit Court. The application was heard on 6 November 2019 and dismissed on that day: BLN16 v Minister for Immigration [2019] FCCA 3191. Written reasons were produced on 25 November 2019. The Appellant did not avail himself of an opportunity to put on evidence or submissions. The Federal Circuit Court considered the grounds of review. These were as follows:
1.I am scared to return back to China, because there really exists the persecution targeted towards the petitioners in China. If I returned back to China, I would certainly be monitored by the staff from the Chinese governmental department due to my previous petition experience. Even I could be arrested and detained without any freedom or human rights in China.
2.As to the one-week visit to Japan using my previous passport, at time I filled in the application form, it did not occur to me as it was a long time ago and my previous passport was not on my hand. I did not intend to hide this. If l do, I wouldn’t even mention that visit in the interview and Tribunal hearing. However, the Department and Tribunal doubted my overall credibility due to this which I consider it is unfair and unreasonable.
3.As to the location of detention centre, I was in panic when the delegate asked about its location. In fact, I did not remember clearly. The days in detention centre were nightmares to me. But since the delegate asked about it, I thought I must come up with something otherwise he would consider my application was not genuine. Hence, I tried my best to recall my memory but I was still not sure about it. I don't think it could be the reason Department and Tribunal suspect my claims.
4.I was extremely nervous at interview and hearing, sometimes I could not even understand the question. The delegate and officers kept asking me question which made me even nervous. Besides, they did not consider my personal safety and risk if I go back to China.
5.I hope the Federal Circuit Court of Australia could consider my risk of going back to China and do justice for me.
The court concluded that grounds 1, 3 and 5 were all invitations to merits review and found that no jurisdictional error was made out by grounds 2 and 4, ultimately dismissing the application.
THE APPEAL TO THIS COURT
On 18 November 2019, the Appellant appealed to this Court. The grounds of appeal are as follows:
1.Error of the Honour, Judge of the Federal Circuit Court, in failing to identify the procedural unfairness given by the second respondent.
2.Bias of Honour, Judge of the Federal Magistrate Court against the Applicant.
3.The process at present out of the expectation, which has ran out of my financial ability. I hope the Federal Court can judge fairly.
Ground 3 does not disclose a viable ground of appeal. In substance, Ground 1 alleges that the Tribunal denied the Appellant procedural fairness. It is unclear what the denial of procedural fairness alleged is. Whilst it is no doubt true that the Tribunal traversed matters which the delegate did not (for example, the issue of the Appellant’s travel to Japan and South Korea) it appears from its reasons that it gave the Appellant an opportunity to comment on these matters at the hearing. No challenge on the basis of cases such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (‘SZBEL’) is in that circumstance available. Nor is it possible to say that there was some substantive argument addressed to the Tribunal which it failed to deal with such that there was a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. Without any more detail as to what the alleged breach of procedural fairness is, it is impossible to assay the issue further. It will suffice to say that having read the delegate’s decision and the Tribunal’s decision with care, I am unable to perceive any obvious breach of the rules of procedural fairness. It is not necessary in that circumstance to consider the implications of s 422B of the Migration Act 1958 (Cth) for the argument or the fact that the ground appears not to have been raised in the Federal Circuit Court.
Turning then to the second ground, the allegation is that the judge was biased against the Appellant. There are two ways this ground could be advanced. First, it could be said that there was a reasonable apprehension that the judge might not bring a fair mind to bear on the issues for determination: c.f. Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]; Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 at [11]. Under this approach, the question is not whether the judge actually was biased but rather whether a reasonable lay bystander might apprehend that the judge might not bring a fair mind to bear on the issues for determination. Secondly, the argument could be that the judge was actually biased.
Both arguments depend to an extent on evidence. If the claim be one of apprehended bias, then what are the facts that give rise to the apprehension? If it said the judge was actually biased, what is it about the judge which allows one to infer this? In this case, the Appellant did not articulate anything about either matter. In that circumstance, I do not think that this ground can be upheld.
I have separately examined the five grounds which were pursued before the Federal Circuit Court even though they are not challenged in this Court. Ground 1 does not disclose a viable ground of judicial review. That the Appellant was scared to return to China does not, by itself, imply the existence of a jurisdictional error.
Ground 2 went to the Tribunal’s conclusion that it should regard the Appellant’s credit as adversely affected by his failure to refer to his earlier trips to Japan and South Korea. Had this matter not been raised at the hearing in the Tribunal, a ground of review under SZBEL may well have been available. But the reasons of the Tribunal are evidence that these matters were explicitly raised with him at the hearing. Whilst it may be possible to prove that the Tribunal’s reasons inaccurately record that the matter was raised with him, the Appellant did not undertake any such enterprise on this occasion. The Tribunal’s reasons therefore stand as uncontradicted evidence that it did raise this matter with the Appellant. In that circumstance, a challenge under SZBEL is not viable. Whilst I might have been a little less inclined to regard as discreditable the Appellant’s failure to refer to his trip to Japan and South Korea as a tourist many years before in his application, the question is not what I think, but what the Tribunal thought. Whilst there are limits to what kinds of opinions the Tribunal can permissibly form, circumscribed by doctrines such as irrationality, I do not think it is possible to describe the Tribunal’s conclusions on this matter as lacking a rational basis.
As to Ground 3, this proffers an explanation for why the Appellant gave different accounts of the address of the detention centre. Whilst the explanation provides a rational basis for arguing that the Tribunal could have come to a different decision on this aspect of the matter if it had been taken into account, the difficulty is that the Appellant appears not to have raised this with the Tribunal (which is hardly surprising). Consequently, it is difficult to see how it should have been taken into account. I have considered also whether this point may be repurposed as a rationality argument. However, it is not open to conclude that the Tribunal stepped outside the bounds of rationality by acting on the fact that different addresses were given for the detention centre. Even if I accepted as a fact the matters alleged in Ground 3 (i.e. the inability to answer due to panic) this would still not render the decision irrational unless something more were shown, for example, that the Tribunal knew the Appellant was panicking when he gave the evidence. But there is no such material before me.
Ground 4 is a more generalised version of Ground 3 and can go nowhere for the same reasons. Ground 5 does not constitute a ground of appeal.
DISPOSITION
In those circumstances, none of the grounds of appeal can be upheld and the result must be that the appeal should be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 27 May 2022
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