BPJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 987
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 987
File number(s): SYG 871 of 2018 Judgment of: JUDGE LAING Date of judgment: 2 November 2023 Catchwords: MIGRATION – application for review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Protection (Class XA) (subclass 866) visa – whether the Tribunal ignored relevant considerations or evidence – whether the Tribunal denied the applicant procedural fairness – allegation of bias – application dismissed Legislation: Migration Act 1958 (Cth) ss 424A, 425, 425A Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 9 October 2023 Place: Sydney Applicant: In person Solicitor for the First Respondent: Mr M Burnham, Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 871 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a Chinese national who applied for a protection visa on 7 October 2014.
On 14 August 2015, the Delegate refused the application.
On 18 September 2015, the applicant applied for review of the Delegate’s decision. On 18 December 2017, the applicant appeared before the Tribunal.
On 22 February 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter and the evidence before it at [1]-[57] of its decision.
The Tribunal’s findings regarding the applicant’s “Falun Gong claims” may be summarised as follows:
(a)The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner or that she practiced at home, or anywhere, in China or Australia (at [63] and [69]).
(b)Accordingly, the Tribunal did not accept that the applicant was arrested and detained for being a Falun Gong practitioner or for any other reason (at [63]).
(c)The Tribunal accepted the applicant’s evidence of hospitalisation and surgery in 2012, following which she may have suffered complications. However, the Tribunal found the applicant’s claims of how she came to learn about and practice Falun Gong to be lacking in credibility and detail (at [64]).
(d)Despite the applicant having some knowledge of the basic facts of the practice, the Tribunal was not convinced from her responses that the applicant was a genuine and authentic practitioner of Falun Gong (at [65]).
(e)The Tribunal found her knowledge of the practice to be unconvincing and inconsistent with a genuine practitioner of six years (at [65]).
(f)The Tribunal could not be satisfied that the applicant did not learn basic information about the practice from publicly available information after moving to Australia (at [65]).
(g)The Tribunal considered that the applicant had not sought to meet or practice with other Falun Gong practitioners since arriving in Australia. Her reasons for not doing so were considered “telling”, with her practitioner friend refusing to practice with her because she doubted the applicant’s motivations, and the applicant being concerned that others may similarly doubt her. The Tribunal was similarly not convinced by the applicant’s motivations (at [66]).
(h)The Tribunal was also concerned by the applicant’s conduct in returning to China after going to the USA, without first seeking protection (at [67]).
(i)The Tribunal did not accept that the applicant had been arrested and detained as claimed, noting the private nature of her claimed practice. The Tribunal considered that the applicant’s claim that her infant son exposed her by mimicking her practice in the park lacked credibility (at [67]).
(j)The Tribunal considered this together with what it considered to be the applicant’s limited and general knowledge of Falun Gong, as well as her husband’s evidence that he had never seen her practice privately or elsewhere (at [68]).
As the Tribunal did not accept that the applicant had practiced Falun Gong in China, it did not accept that she had been arrested or detained for this reason (at [71]). The Tribunal did not accept that the applicant would practice Falun Gong on return to China, or face relevant harm on this basis (at [72] and [77]). On the applicant’s own evidence, the applicant had not practised publicly nor met up with other Falun Gong practitioners in Australia. The Tribunal found that she would not do so in China. The Tribunal therefore did not accept that anyone would know that the applicant has any knowledge of Falun Gong. The Tribunal was not satisfied that there was a real chance that the applicant would face harm in China for any activities she may have participated in during her time in Australia (at [72]).
The Tribunal did not consider that there was adequate evidence before it to accept the applicant’s claims of maltreatment by doctors or the hospital system in China. The Tribunal was therefore unable to make conclusive findings on the standard of care available in China. The Tribunal considered that it had no basis to find that the applicant would be unable to access adequate medical care in the future, resulting in relevant harm (at [73]-[75]).
Having regard to the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [76]-[80]).
PROCEEDINGS IN THIS COURT
The applicant commenced the current proceedings through an application filed on 29 March 2018. The grounds relied upon in the application were as follows:
1.The Administrative Appeals Tribunal has ignored relevant consideration in making the decision.
2.The Tribunal did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the applicant for comment.
3.The Tribunal have practised Falun Gong in Australia, which gave rise to a potential sur place claim.
4.The Tribunal made no findings as to whether or this occurred, no findings about whether or not, if it did happen, it gave rise to real chance of persecution.
Grounds 1, 3 and 4
Ground 1 contended that the Tribunal ignored a relevant consideration in coming to its decision. The ground did not identify what consideration that the Tribunal was said to have failed to consider.
At the hearing, the applicant explained that the matter that she contended was not considered by the Tribunal was the subject of her complaints under grounds 3 and 4. Ground 3 contended that the applicant had a “sur place” claim by reason of her practice of Falun Gong in Australia. Ground 4 contended that the Tribunal made no findings as to whether or not this occurred or whether it gave rise to a real chance of persecution.
These grounds are unsustainable in the face of [63] and [72] of the Tribunal’s decision. At [63], the Tribunal rejected that the applicant had practised Falun Gong at home or anywhere in Australia. At [72], the Tribunal rejected that anyone in China would know that the applicant had acquired a basic knowledge of Falun Gong. The Tribunal also rejected in that paragraph that there was a real chance that the applicant would face harm in China in future “for any activities she may have participated in here to acquire a basic level of knowledge of Falun Gong”. This was considering the applicant’s evidence that she had not practised publicly or met up with other Falun Gong practitioners in Australia.
These findings were dipositive of any claim the applicant may have had to face harm due to her practice of Falun Gong in Australia.
Having reviewed the materials, I am unable to identify any other consideration, claim or evidence that the Tribunal was obliged to consider and that the Tribunal failed to take into account. The Tribunal considered the applicant’s evidence regarding her Falun Gong claims in some detail at [7]-[48] and [62]-[72] and [76]-[79] of its decision. This included evidence that had been provided to the Department, as well as the evidence of the applicant and her husband at the Tribunal hearing. The Tribunal also considered country information relevant to the applicant’s claims at [49]-[57] of its decision. The Tribunal considered the applicant’s claims regarding medical care at [73]-[79]. The Tribunal did not accept that the applicant would face a real chance of relevant harm on account of her involvement with Falun Gong, or medical needs, for the reasons that it gave. Those reasons are summarised above.
The Tribunal’s reasoning in this regard appears to have been dispositive. The Tribunal assessed the claims and evidence before it against the correct statutory criteria. It is not apparent that the Tribunal failed to consider any matter that it was bound to consider in undertaking this assessment.
For these reasons, grounds 1, 3 and 4 are unable to succeed.
Ground 2
Ground 2 contended that the Tribunal “did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the applicant for comment”.
The ground did not state what adverse information the applicant considered ought to have been put to her for comment. At the hearing, the applicant submitted the Tribunal did not adequately put her on notice of its concerns regarding her Falun Gong claims or provide her with adequate opportunity to respond.
As was observed in the Minister’s submissions and discussed at the hearing, the Tribunal’s procedural fairness obligations were limited under Part 7 of the Migration Act 1958 (Act). The applicant was invited to a hearing in accordance with ss 425 and 425A of the Act. She attended that hearing with her husband.
I accept the Minister’s submission that the applicant and her husband appear to have been sufficiently on notice of the issues arising in relation to the decision under review from the Delegate’s decision and the Tribunal’s questioning that was set out in its decision. This included the credibility of the applicant’s Falun Gong claims. Whilst the Delegate did not expressly find the applicant’s Falun Gong claims to be non-credible, the Delegate did not accept those claims in the absence of sufficient opportunity to test them. The Tribunal put a number of matters to the applicant during the Tribunal hearing that made it clear that the credibility of her claims were in issue, including that:
(a)the applicant’s knowledge of Falun Gong appeared to be lacking in certain respects (at [22]);
(b)the Tribunal may doubt the applicant’s motivations (at [30]-[31]);
(c)the Tribunal did not understand why the applicant had not sought asylum in the United States of America, given her claims (at [32]);
(d)country information indicated a level of tolerance for private practice of Falun Gong (at [35]); and
(e)the applicant had not provided corroborative evidence regarding her medical treatment at the time of the Tribunal hearing (at [37]).
There is no indication in the materials that the applicant or her representative conveyed to the Tribunal that they considered they had been given inadequate time to respond to the Tribunal’s concerns. As was observed by the Minister, the applicants were given two weeks after the hearing in which to provide additional evidence. Further evidence was provided by the applicant’s migration agent within this time. No additional time appears to have been sought. In these circumstances, I do not see how the time provided could be said to have been unreasonable.
Section 424A of the Act relevantly provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information…
For the purposes of s 424A of the Act, “information” concerns evidentiary material or documentation and not the Tribunal’s “subjective appraisals” such as those regarding “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at [18]. In order to enliven s 424A, “information” must contain in its “terms a rejection, denial or undermining of the [applicant’s] claims” to be owed protection obligations: SZBYR at [17].
I accept the Minister’s submission that there was no “information” before the Tribunal capable of enlivening its obligations under s 424A of the Act. The material relied upon by the Tribunal largely consisted of evidence given by the applicant and her husband for the purposes of the review, or during the process leading up to the decision under review, as well as general country information. To the extent that this could be regarded as “information” it largely fell within the exceptions in s 424A(3)(a) to (ba) of the Act. The evidence given by the applicant’s husband was not in its terms a “rejection, denial or undermining” of the applicant’s claims and appears to have been supported by the applicant (at [46]). As there was no “information” before the Tribunal capable of enlivening s 424A of the Act, the Tribunal was not obliged to put any adverse information to the applicant for comment in accordance with that provision.
Having regard to the above, ground 2 is unable to succeed.
Bias
At the hearing, the applicant additionally submitted that she felt that the Tribunal had prejudged her matter.
As was discussed at the hearing, grounds of prejudgement or bias have heavy thresholds. Actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J). Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ).
The applicant submitted that she felt that the Tribunal member was against her because of the way that they looked at her and the manner in which they spoke to her. This indicated to the applicant that the Tribunal came from a position of doubting rather than accepting her claims. The applicant also expressed concern that she had been required to demonstrate Falun Gong exercises, in circumstances where her memory was affected by her medical issues.
The Tribunal does not appear to have taken issue with the applicant’s ability to perform the exercises, as opposed to her ability to describe their names and meaning. In any event, the Tribunal considered the applicant’s claim that her ability to recall such details had been affected by her medical issues at [22] of its decision.
I accept that the Tribunal’s doubts in relation to the applicant’s claims would have been apparent at the Tribunal hearing. As set out above, the Tribunal put a number of concerns to the applicant regarding the credibility of her claims. However doubt regarding an applicant’s claims, and ultimate disbelief of those claims in a decision, is not sufficient to demonstrate bias. There does not appear to be sufficient basis in the materials before the Court for finding that the tests for either actual or apprehended bias have been met.
Other matters
For completeness, I have also considered whether the Tribunal may have erred by impermissibly assuming the role of arbiter of doctrine: see MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [46]-[57]. This is by reference to the Tribunal’s consideration at [65] that the applicant’s knowledge and understanding of Falun Gong was “not consistent with that of a genuine practitioner”.
I am not satisfied that the Tribunal fell into this type of error in the present case. At [65], the Tribunal expressly acknowledged that “practitioners differ in the level of knowledge and expressions and understanding of the beliefs and practices”. The Tribunal’s concerns regarding the applicant’s limited knowledge of Falun Gong were expressed within the context of what it considered to be the applicant’s inability to explain convincingly how she learned about Falun Gong, why she was interested in it or what it meant to her (at [63]-[65]). The Tribunal was concerned that the applicant’s level of knowledge could have been readily obtained through publicly available information (at [65]). The Tribunal was also concerned by the fact that other practitioners doubted or were expected to have doubted her motivations and by the other credibility issues that it identified (at [63]-[69]).
In other words, the Tribunal appears to have been concerned that the applicant did not appear to know much about Falun Gong, that what she knew could have been obtained from the internet, and that there were other issues that caused it to doubt the credibility of her evidence. I am not satisfied that this required the imposition of some arbitrary standard regarding what all genuine practitioners would be expected to know.
Therefore, whilst the Tribunal’s language in some parts may have given rise to a concern that it had impermissibly appointed itself as an arbiter of doctrine, I am not convinced that the Tribunal fell into this type of error in the present case.
CONCLUSION
For the above reasons, the application before this Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate: P.C.
Dated: 2 November 2023
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