BRQ18 v Minister for Home Affairs

[2018] FCCA 2142

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2142

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider the applicant’s claims and evidence – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal’s decision was bias – whether the standard of interpretation at the hearing was inadequate – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss. 36, 424A, 425, 476.

Applicant: BRQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 916 of 2018

Judgment of: Judge Street

Hearing date: 7 August 2018

Date of Last Submission: 7 August 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 916 of 2018

BRQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 March 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of China and his claims were assessed against that country.  The applicant arrived in Australia on 17 July 2014 on a Visitor FA-600 visa, which expired on 17 October 2014. On 13 October 2014, the applicant lodged an application for a Protection (Class XA) visa.

3. The applicant claimed to have worked for a food processing company in China and that in the course of his employment the applicant discovered the company was producing gutter oil.  The applicant claimed that he persuaded workers not to participate in the processing of the gutter oil and that he was immediately fired.  The applicant claimed the head of security department pointed an electrical wand at his nose and warned him not to make trouble.  The applicant alleged that he took photographs and took them to a particular administrative body.  The applicant alleges he was told that the matter was serious and would be reported to the supervisors. 

4. The applicant alleges in the beginning of June 2013, he was detained by police and illegally interrogated more than 10 times.  The applicant claims he was forced to write a repentance letter and promise not to report the factory again.  The applicant claims he was held in detention for two weeks and beaten countless times.  The applicant alleges he was released when his wife paid a fine and that he attempted to leave China to travel to Singapore and Malaysia, but he could not escape during the tour.  The applicant alleges after his departure from China, his family has been questioned by the police concerning his whereabouts.

5. On 4 November 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa. 

The Tribunal

1. The applicant applied for review to the Tribunal on 3 December 2015.  By letter dated 30 November 2017, the applicant was invited to attend a hearing on 9 February 2018.  The applicant attended on that date to give evidence and present arguments. 

2. The Tribunal took into account the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and evidence.  The Tribunal made express reference to the existence of a s 438 certificate, which the Tribunal disclosed to the applicant and noted that certain of the documents related to internal workings and business affairs of the Department.  The Tribunal pointed out there was no clear reason why the documents are said to be the subject of public interest.  The Tribunal indicated that the certificate may not be valid. 

3. The Tribunal advised the applicant that one document which was the subject of the certificate was relevant to the review, namely the case notes, which referred to information provided by the applicant in support of his Visitor visa application. The Tribunal indicated that the other documents were not considered to be relevant.  The Tribunal informed the applicant that the information referred to in the document concerning his Visitor visa application had been discussed and disclosed in the delegate’s decision. The Tribunal indicated that it would discuss the information with the applicant in the course of the hearing. The Tribunal records the applicant was asked if there was anything he wished to say about the certificate and the applicant indicated that he wished to make no comment.

4. The Tribunal expressly referred in the course of its reasons to the information contained in the delegate’s decision, which indicated that the applicant had provided false information to the Australian embassy about his occupation when he applied for a Visitor visa.  The Tribunal referred to the applicant’s response in which the applicant alleges that other people had made the application and fabricated that evidence about his employment.  The Tribunal did not accept the applicant’s evidence.  The Tribunal found the applicant not to be a credible witness and did not accept that he was unaware of the fact that the false information was provided in respect of his Visitor visa application.

5. The Tribunal formed the view that the applicant is not a truthful witness and was not satisfied that the claimed events by the applicant occurred.  The Tribunal took into account the applicant’s willingness to provide false evidence in relation to its earlier findings that the applicant’s evidence could not be relied upon. 

6. The Tribunal found that there is not a real chance the applicant will suffer serious harm on return to China for the reasons claimed. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 4 April 2018. On 10 May 2018, a Registrar of the Court made orders fixing the matter for hearing today and giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. The applicant put no submissions from the bar table when invited to do so. 

The grounds

1. The grounds in the application are as follows:

   1. AAT’s officials did not consider my actual situation to make a decision, it is unfair for me.

   – AAT’s officials said that my behaviour was not reasonable because I did not apply a protection visa when I visited to Singapore and Malaysia. I think that officials did not consider my actual situation, my passport was distrained by the tour guide actually. During that time, I did not know I can apply a protection visa without passport and my state of mind is always not good. In Singapore and Malaysia, I have no any friend and relative, so I did not know who can help me.

   2. AAT underestimated my persecution in China and AAT did not treat me case fairly.

   – AAT’s officials did not examine the risk of the persecution I will face if I return to China. Due to I submitted these evidence to the Authority, my behaviour had to undermine their interest. Those people have huge power and they also colluded with the Chinese government’s officials. They protect with each other. AAT’s officials did not realise the important point and AAT should investigate my case carefully.

   3. AAT’s official’s attitude was mandatory, it cause I was so scared and could not answer the question better.

   4. Moreover, AAT’s interpreter has a poor translation and I could not hear interpreter very well. AAT’s officials’ attitude was very terrible.

Ground 1

1. In relation to ground 1, that the Tribunal did not consider the applicant’s actual situation to make a decision and that the decision is unfair, the Tribunal’s reasons reflect a consideration of the applicant’s claims and evidence. The Tribunal, in making adverse credibility findings raised with the applicant during the hearing that, contrary to his oral evidence, he was treated for his injuries while in detention and did not seek further medical evidence. The applicant said that the claims were prepared by a lawyer and he did not pay much attention to that. 

2. The Tribunal also referred to asking the applicant about why he did not seek protection in either Singapore or Malaysia when he visited those countries if he feared for his safety. The applicant said he did not have enough time because of the tour. The applicant alleged that his tour agent had held onto his passport. The Tribunal raised with the applicant whether anything happened on his return to China and the applicant said that something occurred but he did not mention it in his statement.  The Tribunal asked why the applicant had omitted the information from his statement of claims and the applicant said he wanted to keep it simple. 

3. The Tribunal referred to country information and put to the applicant that it appears Chinese authorities are highly motivated to stop the illegal practice involving gutter oil. The Tribunal suggested that the applicant would have been able to avail himself of state protection. The applicant alleged that the company, since his arrival in Australia, has gone bankrupt and that he would be blamed for this if he went back to China. The Tribunal referred to inconsistencies in the applicant’s evidence in respect of key aspects of his claims and found, in the absence of any convincing explanation, that the applicant was not a witness of truth.

4. The Tribunal’s adverse credibility findings were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligible justification. There is no substance in the proposition that the Tribunal failed to consider the applicant’s actual situation. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

5. In relation to the certificate and the documents the subject of the certificate, the Tribunal raised with the applicant the existence of the certificate and the documents that were said not to be relevant and identified a relevant document. On the face of the Tribunal’s reasons, the applicant suffered no practical injustice by reason of the existence of the certificate or the documents the subject of the certificate. Further, it is apparent from the Tribunal’s reasons that the Tribunal raised the information the subject of the relevant document with the applicant and that that information had been identified in the delegate’s reasons that had been provided to the Tribunal.

6. I accept the first respondent’s submissions that insofar as the information the subject of the relevant document to the effect that the applicant had provided a false document in respect of his visitor visa application was information identified in the delegate’s decision which was provided with the application for review and is, accordingly, information that is excluded from the application of s 424A of the Act by subsection (3)(b) of that section. 

7. I accept the first respondent’s submission that it is apparent that the issue in respect of the false information was raised by the Tribunal with the applicant, and on the face of the material before the Court, the applicant had a real and meaningful hearing.

8. On the face of the material before the Court, the Tribunal complied with its obligations under s 425 of the Act and its other statutory obligations.  On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness. I accept the first respondent’s submission that the applicant suffered no practical injustice or denial of procedural fairness by reason of the documents the subject of the certificate in the present case or the existence of the certificate.

9. In relation to the particulars in support of ground 1, the assertion in relation to behaviour when the applicant visited Singapore and Malaysia does not reflect the actual findings of the Tribunal, which have been summarised above. The applicant’s reference to not knowing that he could apply for protection in Singapore and Malaysia without a passport, in substance, is inviting this Court to engage in impermissible merits review. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant’s assertion concerning persecution in China was the subject of consideration by the Tribunal, and the Tribunal made adverse credibility findings that were open to the Tribunal.  The applicant’s disagreement with the adverse credibility findings does not identify any error by the Tribunal.

2. The Tribunal’s adverse credibility findings were logical and reasonable, and it was a matter for the Tribunal to determine the applicant’s credit.  The Tribunal was entitled to take into account the applicant’s travel and return to China in that regard and to take into account the provision of false information by the applicant in support of his Visitor visa. The adverse credibility findings do not of themselves identify any procedural unfairness. The Tribunal did properly identify the relevant law and applied the relevant law to the facts the Tribunal found. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, no material has been admitted into evidence to establish any alleged attitude to support an allegation of bias. The adverse credibility findings by the Tribunal are not conduct by reason of which a fair‑minded lay observer might reasonably apprehend the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

2. There is nothing on the material before the Court to support the applicant’s assertion that he was scared and could not answer questions. The Tribunal’s reasons reflect raising issues with the applicant and the applicant responding. No allegation of bias is made out and on the face of the material before the Court, the applicant was able to meaningfully engage with the Tribunal in the course of the hearing. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, no evidence has been adduced identifying any error by the interpreter. No evidence has been adduced in support of any material error by the applicant or in the translation of the applicant’s evidence or to support any material misunderstanding by the Tribunal. There is no evidence to support a finding that the standard of interpretation prevented the applicant from giving evidence to the Tribunal or that the Tribunal made any adverse finding or conclusion based on any material interpretation error. 

2. The assertion of the official’s attitude being terrible is unsupported by any evidence. The Tribunal’s reasons support the Tribunal having approached the review with an open mind reasonably capable of persuasion as to the merits. For the reasons already given, the adverse credibility findings are not conduct that support any allegation of bias. No jurisdictional error as alleged in ground 4 is made out. 

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 September 2018