BPK15 v Minister for Immigration

[2015] FCCA 3241

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPK15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3241

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the Tribunal failed to put sufficiently detailed adverse findings to the applicant – bias – whether the Tribunal had a closed mind – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 425, 476

First Applicant: BPK15

Second Applicant: BPM15

Third Applicant: BPN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2152 of 2015

Judgment of: Judge Street

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Sydney

Delivered on: 4 December 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the First Respondent: Ms M Stone
DLA Piper

ORDERS

1. The amended application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2152 of 2015

BPK15

First Applicant

BPM15

Second Applicant

BPN15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 29 June 2015 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas.

2. The applicants were found to be citizens of China.  The first, second and third applicants arrived in Australia on 15 June 2013.  The first applicant claims fear of persecution by reason of a desire to have more children and by reason of her having had a second child and the first applicant alleges that she had to undergo abortions in 2010 and 2012.  Neither the delegate nor the Tribunal accepted the applicant’s assertions of the abortions being credible.  Those adverse findings were open on the material before the Tribunal.

3. The applicant also asserted that she had become involved in Christianity and maintained that abortions were not allowed because of her beliefs in Christianity.  Both the Tribunal and the delegate rejected those assertions on grounds of credit.  Those adverse findings were open on the material before the Tribunal.  The grounds of the amended application are as follows:

   The Amended grounds of the Application along with the submission for SYG2152/2015 are:

   That a breach of the rules of natural justice occurred in connection with the making of the Decision.

   That the Applicants were denied procedural fairness in connection with the making of the Decision.

   That an error of law occurred in connection with the making of the Decision.

   That the Decision involved the making of a jurisdictional error in that the Tribunal:

   (i) Identified the wrong issues/applied to the wrong test;

   (ii) Failed to take into account a relevant consideration; and/or

   (iii) Took into account an irrelevant consideration.

   That the Tribunal failed to comply with s 425 (1) of the Act.

   That the Decision was affected by the apprehended bias.

   That the Decision was otherwise contrary to law.

   PARTICULARS OF GROUND AND SUBMISSIONS (see (following pages)

   PARTICULARS OF GROUND AND SUBMISSIONS

   1. The Tribunal failed to accord natural justice and procedural fairness to the applicant. Every time the applicant stated a claim, the Tribunal member simply responded that it “does not accept” the fact but failed to give the cogent or convincing reason as to on what basis it took that view (e.g. paragraph 36, 37, 38 in CB214).

   2. The Tribunal member did not come to the Tribunal with a fresh mind and was not willing to consider the applicant's claims. A typical example is in para 38 regarding the witnesses' statements. Once again, the tribunal member “does not accept” the applicant's claim “for the reasons given above”. In fact, "the reasons above” cannot be found or clearly made out by reading the ABOVE paragraphs by any reasonable person. There are similar examples in para 44, 46 on CB 215. Another example is in para 61 on CB 215, the tribunal member said the applicant “did not give a meaningful response” without firstly setting out the bar for a “me meaningful response” or spelling out what the member's understanding of a “meaningful response”. As the courts made clear in numerous cases that the question for determination when considering apprehended bias by the court should not the state of mind of the decision maker, but the state of mind of a reasonable bystander properly informed: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]. Here the tribunal member's closed mind in approaching the case and failure to give logical or rational reasons for its decision gives rise to jurisdictional error.

   3. Further, in para 38 of CB214, the member stated that "the witnesses are not independent or objective" but no reasons or logical or rational basis for forming such view were given. Clearly, two statements from [X] and [Y]was corroborative of the appellant's claim of having been forced to have abortion twice, as it was independent of the person whose evidence is sought to be corroborated: Minister for Immigration and Citizens v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [35]. While it was open to the RRT to reject the corroborative evidence, it had to have a logical and rational basis for doing so as an administrative decision made in an illogical or irrational manner is affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240CLR 611.

   4. Unlike the test for actual bias, the question for apprehended bias is an objective one; whether a reasonable bystander (or fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision taker is required to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR488.

   5. The RRT must be independent anti impartial. It must deliver justice. Justice must not only he done, it must be seen to be done. Justice can only be done by a decision maker who is not biased, but independent and impartial. Justice can only be seen to be done where a reasonable lay observer might not apprehend that the decision maker may bring a partial mind to the resolution of the question for decision. The tribunal member failed such test in the current case.

   6. In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four separate, but overlapping, categories which might give rise to apprehended bias; interest, conduct, association and extraneous information. The applicant in the present case relies upo11 the second category, conduct. In this case, the member of the RRT conducted the hearing and herself gave rise to an apprehension of bias.

   7. The Tribunal's conduct is to be measured by reference to the function with which the Tribunal is charged; the nature of the process before the Tribunal and the powers which it has to exercise: Re Minister for Immigration anti Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [27].

   9. It is also worth noting that the applicant felt that a lot of the claims that the applicant made were ignored by the Tribunal Member hearing the case. On many occasions when the applicant stated the claims and gave oral evidence the Tribunal Member would respond by saying “do not accept” or “I disagree” or “it is your invention”, or site would simply give the applicant a proposition which she thought should be appropriate in the position of the applicant which was in fact completely contrary to the true circumstances of the applicant and simply so doing out of the convenience for flatly rejecting the applicant's reasonable explanation and falsely justifying her own decision. (e.g. the tribunal's comment on wearing loose clothing in para 31 on CB213 as well as comment on other form of contraception in para 33 on CB213) The applicant was trying to elaborate on the claims she had already made in writing. The applicant felt that on a number of occasions she was cut off by the Tribunal Member and did not get a chance to explain herself in a better way. The applicant felt that she was not given an opportunity to explain herself, and therefore she was not given an opportunity to present her case.

   9. In addition to this the applicant only provided a short typed statement to a migration agent which was lodged with her protection visa application and it was always her intention to substantially expand upon this by way of oral evidence at the RRT hearing and also to produce further documentary evidence in support of her claims. The tribunal's failure to afford the applicant such an opportunity to draw the applicant's attention and expand on “THE ISSUES arising in relation to the decision under review” give rise to the breach of its obligation under S 425(1) of the Act.

   10. In a nutshell, the given examples above are just a few of the “self fulfilling” statements by the decision maker. Because the Tribunal Member did not appear with a fresh mind, the decision involved pre-judgement anti apprehended bias. In the alternative, the applicant was denied the right to be heard. The Tribunal breached the rules of natural justice and made a jurisdictional error. The applicant argues that these are the important legal issues in relation to a decision involved apprehended basis, therefore, the applicant can show cause that there is an arguable case under such circumstances and this case warrants serious and careful consideration and trial at a formal hearing. It is submitted that it would he unjust and improper for this court to dismiss the applicant's application on a preliminary basis.

4. The reciting of propositions as appears in the commencement of the amended grounds of alleged jurisdictional error do not disclose or make out any jurisdictional error.  This is a case where the Tribunal invited the applicant to appear to give evidence and to present arguments by letter dated 1 September 2014 on a hearing date fixed for 9 October 2014.  It is apparent that the first applicant only appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by a registered migration agent.

5. It was clear from both the delegate’s decision on the transcript that was tendered that the applicant’s credibility was a live issue in relation to the allegations of abortion, her desire to have a second child and her alleged involvement in Christianity. The Tribunal correctly identified the criteria to be applied in determining whether the applicants were owed protection obligations by Australia and whether or not the criterion under ss.36(2)(a), 36(2)(aa) or 36(2)(b) or (c) could be satisfied.

6. The Tribunal identified the applicant’s claims and identified reasons for the adverse findings of credit made by the Tribunal that were open on the material before the Tribunal.  There is no substance in the generalised decision in the amended grounds of a breach of natural justice in connection with the decision. 

7. Insofar as the particulars seek to raise an issue of bias, bias must be clearly alleged and properly proved.  No case of bias is proved.  The adverse findings of credit by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

8. The assertion by the applicant that the transcript reveals a closed mind by the Tribunal is without substance.  The proposition that the hearing was conducted in a manner that gives rise to any reasonable apprehension of apprehended bias is without substance.  Neither the form nor substance of the questions in the transcript are conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of that on its merits.

9. There is also no substance in the assertion that the Tribunal denied the applicants procedural fairness.  The Tribunal complied with the statutory requirements and the applicants were given an opportunity to attend a hearing to give evidence and present arguments.   The assertion of a jurisdictional error based on denial of procedural fairness is without substance.  There are no particulars identified in support of an assertion of an error of law by the Tribunal.  No error of law of the Tribunal is made out.  The generalised assertions of taking into account the wrong issue or failing to take into account a relevant consideration or taking into account irrelevant considerations are all unparticularised and without substance and fail to make out any jurisdictional error.

10. It is clear that the applicant had a genuine hearing and that the applicants were given an opportunity to meet the live issues. There is no substance to the assertion of a non-compliance with s.425 of the Migration Act 1958.  For the reasons I have given, the assertion that the decision was affected by bias is without substance and fails to identify any jurisdictional error.  The proposition that the decision was contrary to law is equally unparticularised and there is no substance in that ground.

11. The assertions in the particulars as to what occurred in the hearing before the Tribunal are not correct and, for the reasons I have given, there is nothing that occurred during the hearing of the Tribunal and on the face of the transcript that identifies any basis for an assertion of apprehended bias.  It was a matter for the Tribunal to determine the first applicant’s credit and the adverse findings cannot be said to lack an evident and intelligible justification.

12. From the bar table the applicant sought to take issue with the Tribunal’s adverse finding as to credit of the first applicant.  Nothing said by the first applicant identifies any arguable jurisdictional error.  This was a matter in which the credibility of the first applicant was an obvious and live issue as apparent from the transcript and, for the reasons I have given, the adverse findings of credit were open, as were the adverse findings in relation to the applicant’s claims, including the alleged claim concerning her son and the seriousness of his nosebleed condition.

13. Nothing said by the applicant identified any basis upon which there could be said to be a jurisdictional error by the Tribunal.  The amended application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 December 2015