Boh15 v Minister for Immigration
[2016] FCCA 949
•26 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOH15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 949 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming family violence in China – applicant not believed – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA |
| Cases cited: Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v SZMDS (2010) 266 ALR 367 Re JRL; Ex parte CJL (1986) 161 CLR 342 SCAA v Minister for Immigration [2002] FCA 668 SZOOR v Minister for Immigration (2012) 289 ALR 463 SZSGA v Minister for Immigration [2013] FCA 774 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| Applicant: | BOH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2120 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Maddocks of DLA Piper |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 30 July 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2120 of 2015
| BOH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal now the Administrative Appeals Tribunal (Tribunal). The decision was made on 26 June 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of domestic or family violence. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minster’s outline of legal submissions filed on 14 April 2016.
The applicant is a female citizen of China born on 17 January 1980.[1] She arrived in Australia on 9 November 2013 as the holder of a visitor visa.[2]
[1] Court Book (CB) 42
[2] CB 26, 44, 74
The applicant applied for a protection (Class XA) visa on 5 February 2014.[3] Her claims were set out in her application form and in a statement sent to the Department of the Minister on 29 July 2014.[4]
[3] CB 13-38
[4] CB 30-33, 62-66
The applicant claimed to fear harm in China from her violent ex-husband.
The application was refused by a delegate of the Minister on 6 August 2014.[5]
[5] CB 74-82
The applicant applied to the Tribunal for review of the delegate's decision on 10 September 2014.[6]
[6] CB 83-84
The applicant gave oral evidence before the Tribunal on 12 June 2015.[7]
[7] CB 96-99
The Tribunal made its decision on 26 June 2015.[8] The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
[8] CB 108-114
The decision of the Tribunal
The Tribunal did not accept that the applicant was being truthful about the circumstances in which she left China; specifically, that she feared her violent ex-husband.[9]
[9] Tribunal Decision (TD) [10]
The Tribunal had regard to information in a visitor visa application lodged by the applicant which indicated that she travelled to Australia with her husband and that she had two daughters rather than one as she had claimed.[10] The applicant claimed that the information in this visitor application was false and that it had been prepared by an agent.[11] The Tribunal found that it was unable to make findings about the real situation of the applicant's marital status because it could not ascertain which version of the applicant's circumstances was true.[12] The Tribunal also found that it was clear the applicant was prepared to provide false information to obtain a visa and that this cast serious doubts on her credibility.[13]
[10] CB 110-111 [11]-[15]
[11] CB 111 [15], [17]
[12] CB 112-113 [23]
[13] CB 112-113 [23]
The Tribunal considered the issue of relocation within China by the applicant to avoid her ex-husband.[14] The Tribunal found the applicant's responses to this issue were implausible, inconsistent and contradictory.[15] The Tribunal found that this suggested her claims were false.[16] The Tribunal found that the applicant's behaviour in choosing to travel to Australia rather than attempting to relocate in China was not consistent with the reasonable and rational behaviour to be expected from a person in her claimed situation.[17] The Tribunal found the applicant showed a lack of candour and provided different and nonsensical reasons for her inability to leave her daughter with her mother and relocate in China despite the fact that she had done so to travel to Australia.[18]
[14] CB 111-112 [18]-[19]
[15] CB 113 [24]
[16] CB 113 [24]
[17] CB 113 [24]
[18] CB 113 [24]
Accordingly the Tribunal rejected the applicant's claims.[19] The Tribunal did not accept that the applicant left China because she feared harm from her ex-husband, nor that if she were to return to China she would be harmed by her ex-husband. The Tribunal also found that the applicant did not satisfy the complementary protection criterion.[20]
[19] CB 113 [25]
[20] CB 113 [27]
Current proceedings
These proceedings began with a show cause application filed on 30 July 2015. The applicant continues to rely upon that application. There are four grounds in the application:
1.The Second Respondent failed to consider my application according to S424A of the Migration Act.
2.The Second Respondent was or appeared to be biased.
3.The Second Respondent misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.
4.The decision made by the Second Respondent is illogical and not reasonable.
The application was supported by a short affidavit filed with it which I received as a submission. I have before me as evidence the court book filed on 26 August 2015. I invited oral submissions from the applicant today. She is principally concerned that she was not believed and that the Tribunal did not consider the circumstances of victims of domestic violence in China.
It is clear that the Tribunal’s decision turns on its adverse credibility assessment. It is also clear that that adverse credibility assessment in turn turned on the applicant’s preparedness to make false statements in an earlier visa application in order to gain entry to Australia and the applicant’s evidence on the issue of hypothetical relocation. The material information was put to the applicant at the Tribunal hearing. The Tribunal did not make a relocation decision. Neither did the Tribunal analyse the circumstances of domestic violence victims in China. It was not required to do so because the Tribunal did not accept the factual basis of the applicant’s claims.
The applicant accuses the Tribunal of bias, but apart from her disagreement with the Tribunal’s reasoning process there is nothing to support that allegation. It will be a rare case indeed in which an allegation of bias can be supported by the Tribunal’s decision alone and in the present case no such support is present. The other grounds advanced by the applicant do not rise above a dispute over the merits of the Tribunal decision. The applicant is insistent that she is a genuine victim of domestic violence. She told me from the bar table that she has divorced her former husband and that she paid $10,000 for a migration agent in China to prepare a fraudulent visitor visa application to permit her to come to Australia.
She also told me from the bar table that she has paid a lesser amount for a person she knows as Mr Lu[21] to assist her with her protection visa application. The applicant wishes that the Minister’s Department should have a closer look at her claims. That is beyond the scope of these proceedings. In my view, the Minister’s submissions deal adequately with the ground of review advanced. I agree with those submissions.
[21] or Mr Lv
Ground one
Ground one asserts that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (Migration Act).[22]
[22] The applicant’s affidavit affirmed on 18 July 2015 similarly asserts (in the form of a submission rather than evidence) that the Tribunal failed to comply with s.424A of the Migration Act
The Tribunal sought to disclose information to the applicant pursuant to s.424AA of the Migration Act, at hearing.[23]
[23] TD [16]-[17]
The information put to the applicant was obtained from a visitor visa application made by the applicant, and suggested that the applicant had travelled to Australia with her husband and that she had two daughters in China.
This information directly undermined the claims advanced by the applicant that she left China to escape from her violent ex-husband, leaving her only daughter with her mother. It is apparently from [25] of the Tribunal decision record that this was a dispositive issue such that it would be a reason, or a part of the reason, for affirming the decision under review. Accordingly, this information from the applicant’s previous visitor visa application enlivened the Tribunal’s obligations pursuant to s.424A(1) of the Migration Act.[24]
[24] SZBYR v Minister for Immigration (2007) 235 ALR 609, 615 [17]
Pursuant to s.424A(2A) of the Migration Act, the Tribunal is not obliged under s.424A to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under s.424AA of the Migration Act.
On the face of the Tribunal decision record, the Tribunal put this information to the applicant in accordance with s.424AA of the Migration Act, and thereby dispensed with its obligations under s.424A of the Act. The Tribunal stated, at [16]:
Accordingly, I put the information to the applicant pursuant to the procedures set out in s 424AA of the Act. I explained the information, the relevance of the information, invited the applicant to comment or respond to it, and informed her that she could seek additional time in which to provide her comments or response.
In these circumstances, a breach of s.424A of the Migration Act cannot be made out, and ground one fails to raise an arguable case for the relief sought.
Ground two
Ground two asserts bias on the part of the Tribunal. Any allegation of bias (either actual or apprehended) cannot be made out in the absence of particulars and evidence.
An allegation of bias must be firmly established, distinctly made and clearly proved.[25] The mere fact of adverse findings does not, in itself, reveal bias or prejudgement.[26] Further, it is rare that an allegation of bias will be made out on the decision record alone.[27] There is nothing to suggest from the Tribunal decision that the Tribunal did not conduct the review with an open mind.
[25] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J); Minister for Immigration v Jia (2001) 205 CLR 507, 531 [69] (Gleeson CJ), 546 [127] (Kirby J)
[26] WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
[27] SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J, see also Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
In any event, on the face of the decision record, there is no suggestion that the Tribunal brought a closed mind to the applicant's case. Contrary to the applicant’s assertion, the Tribunal carefully considered all of the evidence before it and the claims made by the applicant before making its findings. The Tribunal made clear the reasons for expressing doubt about the applicant's credibility, and it was open for the Tribunal to have those concerns.
Ground three
Ground three asserts that the Tribunal misinformed itself as to the applicant’s circumstances and applied the incorrect test. This ground should be understood as seeking to cavil with the merits of the Tribunal’s factual findings.
The Tribunal, at [11]-[19], engaged with the applicant in order to inform itself accurately of the applicant's circumstances but the applicant's inconsistent evidence made this difficult.[28] It cannot be said that the Tribunal misinformed itself as to the applicant’s circumstances.
[28] TD [25]
This ground also alleges that the Tribunal "incorrectly applied the test" although the “test” is not identified. The Tribunal did not undertake a detailed consideration of the applicant's claims against the complementary protection criterion. However, having regard to its factual findings, it was not required to again consider these matters against the complementary protection criterion.[29] Further, the applicant did not make any separate claims for protection under the complementary protection criterion. Accordingly there is nothing to suggest that the Tribunal decision was not made according to law.
[29] SZSHF v Minister for Immigration [2014] FCA 237 at [26] per Siopis J; SZSGA v Minister for Immigration [2013] FCA 774 at [56]; SZSLL v Minister for Immigration & Anor [2013] FCCA 2017 at [75]-[76]
Ground four
Ground four asserts that the decision of the Tribunal is illogical and unreasonable. Absent particulars, this ground goes no higher than to express the applicant’s disagreement with the Tribunal’s decision, and to take issue with the merits of the Tribunal’s findings.
The Tribunal’s refusal on the basis of the applicant’s lack of credibility was open to it on the available material, having regard to its cogent reasons.[30] This is not a decision which another decision-maker[31] would be precluded from making and any contrary argument arises only from a difference of "degree, impression and empirical judgment". This cannot give rise to jurisdictional error on the part of the Tribunal.[32]
[30] TD [23]-[25]
[31] SZOOR v Minister for Immigration (2012) 289 ALR 463 at [15], see also [84] - [85]
[32] Minister for Immigration v SZMDS (2010) 266 ALR 367 at [78] per Heydon J
Nothing raised today orally by the applicant advances her case any further. I conclude that she is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision.
I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application filed on 30 July 2015 be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 April 2016
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