BPV16 v Minister for Immigration
[2018] FCCA 344
•5 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 344 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – applicant originally arriving in Australia on a student visa in 2006 – applicant remaining in Australia unlawfully between 2008 and 2015 when he was intercepted during a roadside drive through. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1)(a), 5H(1)(b), 36(2)(a), 36(2)(aa), 36(2A), 36(2B) |
| Cases cited: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 |
| Applicant: | BPV16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | PEG 281 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 February 2018 |
| Date of last submission: | 5 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 5 February 2018 |
REPRESENTATION
| Applicant in person |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 29 June 2016 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 281 of 2016
| BPV16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(ex tempore)
By application filed in this court on 29 June 2016, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 9 June 2016 pursuant to which the Tribunal decided to affirm the decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) made on 23 October 2015 refusing to grant the applicant a protection visa.
The applicant contended that the decision of the Tribunal had not been well considered, that the Tribunal failed to properly consider his explanation of his faith. He said that the Tribunal ignored his family background and that the Tribunal gave no weight to physical, mental and psychological trauma if he were to be forced to return to his country of origin.
Pursuant to orders made on 22 November 2017, a judge of this court ordered the applicant to file and serve an amended application and an outline of submissions plus any further affidavits by 4.00 p.m. on 6 December 2017. The applicant failed to comply with those orders. The applicant was further ordered to pay the Minister’s costs of $1,200.00 by 22 December 2017. There was no evidence in this case to show the applicant complied with that order either.
The Minister contended that the applicant’s complaints in this proceeding fell into one of three discrete categories. In the first were matters that impermissibly invited a merits review. In the second were matters that pointed to bias by the Tribunal. In the third were matters that the applicant said the Tribunal failed to consider.
The issue for me in this case was whether the Tribunal fell into jurisdictional error in respect of any of the grounds for which the applicant contended.
When speaking of “grounds”, the applicant did not enumerate his grounds of review in the application by which he commenced this proceeding. Instead, in an affidavit he swore on 23 June 2016 the applicant listed eight numbered paragraphs under a heading that read “Attachments to grounds of application orders sought by applicant”. In a section immediately thereunder, the applicant listed six further numbered paragraphs entitled “The grounds of the application are”. The Minister grouped the “grounds”. It was not strictly correct to call them grounds because none set out propositions of fact and law by which it was possible to distil a legitimate basis for contending that the Tribunal had fallen into jurisdictional error in the manner described in Craig v South Australia[1] (“Craig”).
[1] (1995) 184 CLR 163.
Synopsis
For the reasons that follow, in my judgment none of the 14 bases on which the applicant relied to contend the existence of jurisdictional error by the Tribunal were made out. I dismiss this proceeding and order the applicant to pay the Minister’s costs.
Short factual narration
At the date of the hearing before the Tribunal, the applicant was a single 28-year old man from Jiangsu Province, China. He claimed to be a follower of Yiguan Dao. He said he feared that if he returned to China, he would be harmed by Chinese authorities and that he would not have freedom to practise his religion. The Minister’s delegate was not satisfied that the applicant was a credible witness or that –
a)he had a well-founded fear that he would be targeted for persecution by the Chinese authorities; and
b)there was a real risk that the applicant would suffer significant harm if he returned to China.
The delegate took the view that the applicant was not a person in respect of whom Australia had protection obligations.
In the Tribunal
In its reasons given on 9 June 2016, the Tribunal recited –
a)the elements of s.36(2)(a) of the Migration Act 1958 (“the Act”);
b)the elements of s.5H(1)(a) in relation to a refugee with a nationality and the elements of s.5H(1)(b) in relation a refugee without a nationality, and
c)the elements of s.36(2)(aa), s.36(2A) and s.36(2B) of the Act.
The Tribunal addressed PAM3 and two DFAT reports that provided certain country information, stating that one of the DFAT reports indicated there was little country information concerning Yiguan Dao in China.
The Tribunal recorded the information the applicant gave in support of his claims. It did so between paragraphs 18 to 43 of the Tribunal’s reasons, recording that the applicant appeared before the Tribunal on 23 December 2015 to give evidence and present argument and that the applicant was represented by his migration agent although the migration agent did not attend the hearing before the Tribunal. The Tribunal recorded that the applicant arrived in Australia on
8 February 2006 as the holder of a student visa. On 26 May 2006 the applicant was granted a further student visa that ceased on 15 March 2008 after which the applicant remained in Australia unlawfully. He was intercepted when driving during a roadside stop on 8 April 2015 at which time he was identified as an unlawful resident and was detained.
In paragraph 15 of its reasons the Tribunal recorded the answer the applicant gave to the question why he left China and what he feared would happen to him if he returned to China.
Between paragraphs 18 to 43 of its reasons the Tribunal set out the evidence the applicant presented at the hearing. The Tribunal synthesised the applicant’s post-hearing submissions between paragraphs 44 and 45. Country information specific to Yiguan Dao was canvassed between paragraphs 46 to 53 of the Tribunal’s reasons.
So far as the Tribunal’s findings were concerned, they may be condensed in the manner which I now turn. The Tribunal –
a)correctly identified in paragraph 54 of its reasons that the issues in this case involved whether the applicant had a well-founded fear of being persecuted for one or more of the five reasons applicable to the refugee criterion or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there was a real risk that the applicant would suffer significant harm;
b)correctly identified in paragraph 55 of its reasons the applicant was a national of China;
c)correctly identified in paragraph 56 of its reasons that the country of reference for the assessment of refugee claims and complementary protection claims was China;
d)correctly recorded that a decision-maker in an administrative enquiry is not required to make out the applicant’s case for the applicant, nor is the Tribunal to accept uncritically all allegations made by the applicant, citing the High Court decision in Minister for Immigration and Ethnic Affairs v GuoWei Rong[2] (“Guo”);
e)correctly recorded that a Tribunal was not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality, citing the Federal Court decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,[3] Selvadurai v Minister for Immigration and Ethnic Affairs,[4] (“Selvadurai”) and Kopalapillai v Minister for Immigration and Multicultural Affairs;[5]
f)found that the applicant was an unreliable witness as he did not provide convincing evidence of his following Yiguan Dao, knowing only a very brief history of how the practice of it came to be banned in China, being able to recount only four of the principles of the ancestors, and being unable to locate a Yiguan Dao temple for worship and;
g)found the applicant had engaged in significant delay in lodging his application for a protection visa, a matter that undermined his claims and his credibility as the delay in lodging his protection visa application was a legitimate consideration, citing the decision of Heerey J in Selvadurai.
[2] (1997) 191 CLR 559.
[3] (1994) 52 FCR 437.
[4] [1994] FCA 1105.
[5] (1998) 86 FCR 547.
The Tribunal did not accept that the applicant faced a real chance of serious harm on return to China in the foreseeable future on the basis of his religious beliefs. The Tribunal undertook a worthy review of the key authorities on an assessment of a claim based on religious grounds. The analysis included several Federal Court decisions such as Mashayekhi,[6] Wang v Minister for Immigration and Multicultural Affairs,[7] WALT v Minister for Immigration and Multicultural and Indigenous Affairs[8] and SBCC v Minister for Immigration and Multicultural Affair.[9] On 25 January 2018 I reviewed those cases and a great many more providing to this date a composite encapsulation of the major authorities of superior courts binding on a judge of this court in BSD16 v Minister for Immigration and Border Protection.[10] At all events, between paragraphs 71 to 76 the Tribunal gave its reasons for concluding that it was not satisfied the applicant was a genuine follower of Yiguan Dao and instead, the Tribunal found that the applicant advanced this claim for the purpose of securing a permanent visa to remain in Australia. The Tribunal elaborated on the facts that underpinned that conclusion between paragraphs 72 to 76 of its reasons.
[6] (2000) 97 FCR 381.
[7] [2000] FCA 1599.
[8] [2007] FCAFC 2.
[9] [2006] FCAFC 129.
[10] [2018] FCCA 142.
In addressing the applicant’s claim to complementary protection, the Tribunal referred to the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB.[11] The Tribunal concluded that it was not satisfied there was anything in the claims or in the evidence that the applicant provided to satisfy the Tribunal that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia there was a real risk that the applicant will suffer significant harm.
[11] [2013] FCAFC 33.
The Tribunal dismissed the applicant’s convention-based protection claims as well as his complementary protection claims. The Tribunal affirmed the delegate’s decision not to grant the visa that the applicant sought.
In this Court
Being dissatisfied with the decision of the Tribunal, on 29 June 2016 the applicant sought judicial review of the Tribunal’s decision. The application filed with the court to commence this proceeding gave no insight into the basis on which the applicant asserted the existence of jurisdictional error. The applicant’s affidavit sworn 23 June 2016 contained the essence of the applicant’s bases on which he sought relief in this Court.
Having carefully studied the 14 paragraphs of his annexure to his affidavit, it is possible to see the wisdom in the Minister’s work in grouping the various assertions that the applicant made, yet the process of grouping, while undeniably useful, is not as easy to follow as a seriatim consideration of each assertion the applicant made. Lest this case goes further, it struck me that it would be more useful than grouping to separately consider each of the 14 asserted grounds urged by the applicant.
As mentioned above, under the heading “Attachment to grounds of application – orders sought by the applicant” were eight separately numbered paragraphs. Let me now turn to each.
Ground 1
Under this ground the applicant stated that he did not agree with the decision of the Tribunal because the risk to the applicant on account of his professed faith of Yiguan Dao had not been well considered. He asserted for no particularly cogent reason that his statement was ignored “and bias treated”.
The Minister said that ground 1 was no more than the applicant’s disagreement with the Tribunal’s reason and that contrary to the holding of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[12] (“Wu”) the applicant was seeking an impermissible merits review.
[12] (1996) 185 CLR 259.
There was no merit in ground 1. It was the expression of the applicant’s disagreement with the Tribunal’s decision. It did not even remotely hint at the existence of jurisdictional error on the grounds set out in Craig or Kirk v Industrial Court (NSW).[13] Far from there being an absence of cogent reasons in the Tribunal’s decision, the Tribunal expressly considered:
a)the applicant’s claims;
b)the applicant’s evidence at the hearing;
c)the applicant’s post-hearing submissions; and
d)country information, both as it was available to the Tribunal as well as that which the applicant submitted.
[13] (2010) 239 CLR 53.
So far as country information was concerned, it is now beyond debate that the choice of country information and the weight to be given to it is solely for the Tribunal, according to the High Court decision in Minister for Immigration and Citizenship v SZJSS[14] and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[15] (“NAHI”) in the Full Court of the Federal Court. In my view, the applicant had no legitimate basis for complaint that the Tribunal gave no cogent reasons for addressing the country information in the way it did.
[14] (2010) 243 CLR 164.
[15] [2004] FCAFC 10.
In my judgment, the applicant failed in relation to ground 1.
Ground 2
At its core, under this ground the applicant argued that the Tribunal failed to consider his explanation of why his faith was critical to his life. The Minister disagreed, relying on the propositions he advanced in respect of ground 1. In my view the argument advanced by the applicant under ground 1 was the same as the argument he advanced under ground 2, namely an assertion that the Tribunal failed to properly consider his contentions about his faith. I disagree. The Tribunal did in fact give active intellectual consideration to his claims including his assertion of how important his faith was to him. In my view the findings made by the Tribunal were open on the evidence. I did not detect any error, let alone jurisdiction error. Ground 2 failed.
Ground 3
Under ground 3, the applicant also asserted that the Tribunal failed to take account (he called it “failed to take serious account”) of his written statement resulting in his mental distress. The Minister relied on the same basis for submitting that the Tribunal did in fact consider his claims and in any event the applicant was impermissibly seeking to invite me to embark on a merits review of his case. I agree. The Tribunal gave active, intelligent consideration to the applicant’s claims including those in his written statement. In my view, ground 3 was without merit.
Ground 4
Under this ground the applicant asserted that the Tribunal ignored his family background and that his family lives in Australia. He said the Tribunal’s “decision is cruel and lack of humanitarian concern”.
As to the last quoted proposition, I disagree. The Tribunal devoted
89 paragraphs to providing a detailed examination of the entirety of the applicant’s claims. Its decision was very far from cruel. The Tribunal’s decision correctly applied prevailing legal authority. The Tribunal correctly applied the facts of the case to those legal propositions. I detected no error in its reasoning. I detected no jurisdictional error in its reasoning. Ground 4 failed.
Ground 5
Under ground 5 the applicant called in issue country information. As mentioned earlier, the Tribunal investigated country information with a specific focus on Yiguan Dao. According to the High Court decision in Guo and the Full Court decision in NAHI the Tribunal was entitled to make such inquiries as it deemed relevant and to place such weight as it considered appropriate on country information. Under ground 5 the applicant disagreed with the Tribunal’s consideration of country information. That ground, premised in the way it was, was forlorn. I reject the applicant’s contention that any aspect of the Tribunal’s consideration of country information had been ignored by the Tribunal. In reality, the applicant was simply displeased with the outcome in this case.
Ground 6
This ground involved another assertion that the Tribunal failed to consider an aspect of the applicant’s claim, this time as a single person. I disagree. In paragraph 2 of its reasons the Tribunal identified the applicant as a single man. In paragraph 19 of its reasons the Tribunal addressed the applicant’s family members. The Tribunal gave proper consideration to the factual matters alleged in ground 6. I reject the notion that the Tribunal failed to adequately consider the matter on which the applicant relied under this ground. Ground 6 failed.
Ground 7
Even recognising the peculiarities of expression in this ground, it was difficult to follow. Of course I have accorded the applicant due recognition for the fact that English may not be his first language, that he prepared the affidavit himself and that he may not have expressed himself in a manner most advantageous to his case. I took him to mean that the state of affairs in China in relation to adherents of Yiguan Dao had not changed markedly and adherents of that faith face challenges. However, the Tribunal was informed about the religious situation in China by country information, at least in part. It considered that country information. It also considered the applicant’s own contentions about his religion and what he said about the dangers of practising his faith in China. In the face of that information, the Tribunal did not accept some of the applicant’s evidence and it formed its own views based on country information. Based on those considerations, the Tribunal formed the conclusions described above, by rejecting the applicant’s protection claims. It was open to the Tribunal for it to do that. I detected no error in that path of reasoning followed by the Tribunal.
Ground 7 failed.
Ground 8
Somewhat colourfully, the applicant described the Tribunal’s decision as “reckless” and “imprudent” by its alleged failure to give any weight to his information as a whole. I do not agree. For reasons already explained, the Tribunal gave proper active intellectual consideration to the whole of the applicant’s claims. This ground failed.
Some general observations
In case it be said that I failed to pass upon this point, I must mention that in several paragraphs of his so-called grounds of review, the applicant mentioned his mental state. It was called variously his mental trauma, his psychological trauma, his psychological condition, his mental health and other labels. Several things must be said about any contention that bore upon the applicant’s psychological state. First, no evidence of any psychological nature was led. Second, his alleged psychological state was not part of his claims. It did not arise on the material before the Tribunal. Had it so arisen, the Tribunal was required to address it by such cases as Htun v Minister for Immigration and Border Protection,[16] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[17] NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2)[18] and Dranichnikov v Minister for Immigration and Multicultural Affairs.[19] None was raised. The Tribunal was not required to address it therefore.
[16] (2001) 90 FCR 287.
[17] [2003] FCAFC 184.
[18] (2004) 144 FCR 1.
[19] [2003] HCA 26.
In paragraph 85 of its reasons, the Tribunal incorrectly mentioned the applicant returning to India rather than China, and it called the applicant “she” in the same paragraph. Those were obvious typographical errors. The Tribunal was otherwise undistracted in its task. It made no error that went to jurisdiction by those typographical errors. It could not be said that by those errors in that paragraph, the Tribunal’s consideration of claims were infused with notions that were erroneous and thus irrelevant as was held in the Federal Court decision in SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs.[20] The Minister additionally submitted that I should give the Tribunal’s decision a beneficial construction and not one with an eye keenly focused on error. The Minister cited well known authorities in support, including Wu and Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs.[21] I agree with the Minister’s submissions in that regard.
[20] [2007] FCA 63.
[21] [2003] FCA 1044.
The six paragraphs headed “The grounds of the applicant are”
In addition to the eight numbered paragraphs mentioned already, the applicant relied on six further paragraphs under the heading mentioned immediately above. None amounted to jurisdictional error.
Paragraph 1 was factual, addressing the applicant’s involvement in Yiguan Dao. That was not a basis for entertaining an application for judicial review based on jurisdictional error.
In paragraph 2 the applicant stated there is no religious freedom in his country of origin. That was not a valid ground of review.
In paragraph 3 the applicant stated his family all resides in Australia. That was not a valid ground of review.
In paragraph 4 the applicant said his religion had no legal status. Not only was that not a valid ground of review, but to the extent that it was a springboard in the applicant’s claim for protection, the Tribunal already addressed it.
Paragraph 5 spoke of his fears and they have been addressed above.
Paragraph 6 was a recital about the applicant’s wish to live in Australia. That was not a valid ground of review.
Bias allegation
The applicant asserted that the Tribunal was biased. In relation to a claim of actual bias, it must be firmly and distinctly made and clearly proven as was held at the High Court case of Minister for Immigration and Multicutural Affair v Jia.[22] No such claim was made in this case and none was proved. It could not be said that a case of apprehended bias was made out either. An adverse finding will not usually support a claim to bias, as was held in VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[23] SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[24] and WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[25] Any assertion that the Tribunal was biased was untenable and must be dismissed.
[22] (2001) 205 CLR 507.
[23] (2003) 131 FCR 102
[24] [2002] FCA 668
[25] [2002] FCAFC 286
Conclusion
All grounds of review failed. This application for judicial review therefore failed. I dismiss this proceeding and order the applicant to pay the Minister’s costs.
Before leaving, let me refer to the evidence that the applicant gave from the witness box today. When invited to tell me in his own words what he said the Tribunal did wrong in this case, today the applicant gave evidence that he believed the Tribunal was not fair. When pressed, he said the Tribunal did not comprehensively review his claim. He cited how the Tribunal did not agree that his donation to his chosen religion was proof of his following that faith.
The Tribunal, in fact, addressed the point by its references to it in paragraph 44 of its reasons and its factual findings in paragraph 72 of its reasons. The applicant also wanted me to embark on a reconsideration of the evidence in this case. I am forbidden from undertaking a merits review. The applicant agreed that the Tribunal had considered the difference in his living in Australia versus living in China but he said the Tribunal had not noted the importance. That appeared to me, at least, to be an evaluative decision which the Tribunal was well placed to make. On a more careful examination of the Tribunal’s reasons it did in fact address the matter at paragraph 77 and following of its reasons. There was nothing in the submissions advanced by the applicant before me today.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 15 February 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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