BRV16 v Minister for Immigration
[2018] FCCA 1378
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRV16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1378 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal was biased – whether the Tribunal gave genuine consideration to the claims and evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 476 |
| Cases cited: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 and VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471 |
| First Applicant: | BRV16 |
| Second Applicant: | BRW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1753 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 March 2018 |
| Date of Last Submission: | 2 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper Australia |
ORDERS
The application made on 7 July 2016 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $6,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1753 of 2016
| BRV16 |
First Applicant
BRW16
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 July 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 17 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicants are a citizens of the People’s Republic of China (“China”) (CB 12 and CB 27). The second applicant is the first applicant’s wife. She applied for the protection visa as a member of the first applicant’s family unit. She did not make her own claims to protection (CB 26 to CB 32). The application for the visas was received by the Minister’s department on 10 December 2013 (CB 1 to CB 71). The applicants were assisted by a registered migration agent (CB 9).
The first applicant claimed to fear harm on the basis of his conversion to Christianity. He feared that if he returned to China he would “be arrested by the Public Security Bureau (PSB) and imprisoned by the Chinese Government owing to [his] Roman Catholic belief” (question 43 at CB 17).
The first applicant claimed that he became “depressed” after he did not get the “minimum passing scores” to attend “Fuqing City No.1 High School”. In September 2005, he attended a different school and it was there that he met a classmate (“friend”) who later “persuaded” him to go to a Catholic church. In February 2006, the first applicant claimed that he went to a catechism class to study “Catholic belief and teaching”, and was baptised afterwards (questions 44 and 45 at CB 18).
In May 2007 the first applicant came to Australia on a student visa. However, he stated that he met with “complications”, and in November 2007, as a result of his father being involved in a “traffic accident”, his parents could no longer “fund” his studies in Australia. The first applicant had to terminate his studies (question 45 at CB 18 to question 46 at CB 19).
Since arriving in Australia the first applicant claimed to have attended St. Dominic’s Church and the Asiana Centre in Ashfield “regularly” (question 46 at CB 19). The first applicant claimed that attending the church and the Asiana Centre in Australia led him to have a greater understanding of the Roman Catholic Church, and that he “shar[ed]” his “understanding” with the friend that had introduced him to Catholicism. The first applicant claimed that he sent his friend “some materials about Catholic teachings and church activities” from Australia (question 48 at CB 20).
The first applicant claimed that his classmate was “in troubl[e]” with the Chinese government for disseminating the material that the applicant had sent to him. The first applicant’s friend was said to have “spread ‘dangerous’” and “‘anti-communist’ ideologies to harm national security”, was arrested in October 2013, and was “still being detained at Fuqing Detention Centre” (question 48 at CB 20).
The first applicant also claimed that his father had “been subjected to investigation by the PSB” on the basis of the first applicant’s “activities” (question 48 at CB 20). The first applicant fears harm on return to China for these reasons.
The first applicant was invited to, and attended, an interview with the delegate on 2 June 2014 (CB 81 to CB 84 and see CB 107.7). Following the interview, on 2 June 2014, the applicants’ representative sent further documents to the Minister’s department by email (CB 86 to CB 96). The delegate refused the application for the visas on 11 June 2014 (CB 97 to CB 119).
The applicants applied for review to the Tribunal on 1 July 2014 (CB 120 to CB 146). They were assisted by the same registered migration agent (CB 123). The applicants were invited to, and attended, a hearing before the Tribunal on 1 December 2014 (“the first Tribunal hearing”) (CB 151 to CB 154 and see CB 182 and CB 260.6). Two witnesses also attended the hearing and gave oral evidence to the Tribunal (CB 182).
The applicants’ representative provided further documents to the Tribunal by email on 20 November 2014 (CB 158 to CB 159), 23 November 2014 (CB 160 to CB 181) and 15 December 2014 (CB 196 to CB 212). The applicants attended a second hearing before the Tribunal on 15 June 2016 (“the second Tribunal hearing”) (CB 230 to CB 233, CB 241 see CB 260.6). The applicants’ representative provided further documents to the Tribunal by email prior to the second hearing on 8 June 2016 (CB 249 to CB 251). The Tribunal refused the grant of the visas on 17 June 2016 (CB 255 to CB 280).
The Tribunal accepted that the first applicant attended at St Dominic’s Church and the Asiana Centre and that he would practice Catholicism if he were to return to China. However, the Tribunal did not find the first applicant “to be a credible witness and [was] not satisfied that he [had] told the truth in relation to fundamental aspects of his claims” ([35] at CB 262). The Tribunal found that the first applicant’s evidence was not “persuasive or plausible or consistent with country information” ([35] at CB 262), and extensively set out its concerns in this regard ([35] at CB 262 to [58] at CB 269).
The Tribunal considered the first applicant’s claim to have sent material to his “friend” in China through a Chinese chat line known as “QQ”. The Tribunal had extensive concerns with the first applicant’s oral and documentary evidence he had provided to the Tribunal in this regard ([36] at CB 262 to CB 263 to [48] at CB 266). The Tribunal also considered the Statutory Declaration provided by the first applicant’s landlady that indicated she had contacted TPG Internet, but that they were unable to assist in providing information as to the first applicant’s “QQ” account activity. Since no evidence was provided to the Tribunal from TPG Internet itself, the Tribunal had no evidence of the material that was sent from Australia, and was left only with the first applicant’s claim that he had done so ([37] at CB 263 to [40] at CB 264).
The Tribunal considered the two “Summonses” the first applicant had provided to the Tribunal. Country information indicated that document fraud was prevalent in China. The Tribunal considered that the documents the first applicant had provided were inconsistent with relevant country information. The Tribunal put the country information and the possibility that the documents were fraudulent to the first applicant at the second hearing on 15 June 2016. As a result of its concerns, the Tribunal found that the two “Summonses” had been fabricated, and gave them no weight ([42] at CB 264 to [48] at CB 266).
The Tribunal also had concerns about the first applicant’s claim that his “friend” had received a seven year prison sentence. On the basis of country information, also put to the first applicant at the second hearing, the Tribunal found that this claim was “not credible and indicative of the fact that his claims [had] been fabricated” ([49] at CB 266 to [55] at CB 268).
The Tribunal also considered that the first applicant claimed that he had stopped studying because his family could not financially support him due to an accident his father had suffered. However, he also gave evidence that after 6 - 7 months of light work, his father resumed
full-time work, but the first applicant never resumed his studies. He remained in Australia without a visa for four and half years before applying for protection. The Tribunal considered that this reflected poorly on his credibility ([56] at CB 268 to CB 269).
The Tribunal also considered the oral, and documentary evidence (including a letter from a priest, Father McGee), that the first applicant had provided to the Tribunal regarding his claim to be a practising Catholic. The Tribunal also heard evidence from two witnesses (including a Ms Li (“Ms L”)) ([3] at CB 256).
The Tribunal accepted that the first applicant was a Catholic and that he would continue to practice his religion on return to China. However, on the basis of country information, the Tribunal considered that the chance of any harm to the first applicant was remote ([59] at CB 269 to [65] at CB 271). The Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.
Before the Court
By orders made by consent, on 8 September 2016 the applicants were given the opportunity to file any amended application and further evidence by way of affidavit. The applicants filed no further documents in this regard. By order of 1 March 2017, the parties were given the opportunity to file written submissions. The Minister filed written submissions on 20 February 2018. The applicants did not file written submissions pursuant to the order. The matter was ultimately set down for final hearing on 2 March 2018.
At the hearing, the first applicant appeared in person assisted by an interpreter in the Mandarin language. He also appeared on behalf of the second applicant. The Minister was represented by a solicitor.
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. I do not think that the presiding member of Migration and Refugee Division, Administrative Appeals Tribunal has considered or attempted to consider my evidence or information in support of my application for a protection visa in a correct manner or with an open mind. I firmly believe that the presiding member has prejudices against me and that she has in fact decided my application beforehand.
2. Significantly as I have stated at 2nd hearing before the Tribunal if I could not have proofs in support of application the presiding member reject my evidence with an excuse that I failed to have any proofs. If I did have proofs, then the presiding member rejected my evidence with an excuse that my proofs were questionable obviously the president member made her findings completely based on her own taste simply speaking what the presiding member has done is to refuse my application instead of assessing my evidence with an open mind this is really unfair!
3. I am in dangers if I return to China, I must be subjected to persecution by Chinese government. Please help me and kindly look at my application fairly and correctly.”
[Errors in the original.]
Consideration
At the hearing, the first applicant sought to rely on a document which he said he had recently sent to the Minister’s solicitors. He explained that the document had been drafted with the assistance of a “friend”. I told the first applicant that I would consider this document as his written submission in these proceedings. The first applicant also read from a lengthy prepared statement.
I understood the applicants’ grounds and written and oral submissions to raise three assertions of legal error on the part of the Tribunal.
First, in essence, a breach of s.424A of the Act by the Tribunal in relation to “information” given by a witness (Ms L) (see the applicant’s written submissions). Second, that the Tribunal failed to consider, or even to “properly” consider, or give weight to, some of the documentary evidence (“proofs”) the applicants had provided to the Tribunal (see ground “2” of the application). Further, the Tribunal did not give proper consideration to his claims (see ground “1” of the application). Third, this also appeared to be part of the context of an assertion of bias on the part of the Tribunal (see grounds “1” and “2” of the application.
The applicants’ written submissions and ground “3” of the application, also repeated some of his claims to fear harm, as they were put before the Tribunal, and sought to take issue with factual findings made by the Tribunal.
Where those submissions related to the three assertions of legal error identified above (at [25]), they are dealt with below. For the remainder, the applicants’ submissions sought impermissible merits review and do not assist in revealing jurisdictional error in the Tribunal’s decision.
Some specific background is necessary. As set out above, the applicants appeared before the Tribunal on two occasions, some 18 months apart (on 1 December 2014 and 15 June 2016).
At the first Tribunal hearing, the Tribunal took evidence from two witnesses (Ms L and Mr Huang (“Mr H”)). At this hearing, the Tribunal put the first applicant on notice that some aspects of his claims lacked documentary corroboration or support, particularly in relation to the religious documents he said he had sent to his friend in China. The first applicant subsequently submitted a number of documents to the Tribunal in this regard (see CB 196 to CB 212).
The Tribunal considered the first applicant’s claim to have sent materials to China, and the documents provided in support of that claim, under the heading of “Are [the first applicant’s] claims credible” ([35] at CB 262 to [57] at CB 269).
The Tribunal’s analysis led to the following findings ([57] at CB 269):
“When considered cumulatively, the Tribunal finds the above concerns so significant that it is not satisfied that [the applicant] has been truthful in his claims. It is not satisfied he is a credible witness and finds that he has fabricated his claims in relation to sending religious material to [the first applicant’s friend in China] and the consequences of that action with a view to a migration outcome. The Tribunal finds that:
- [The first applicant] did not send religious material to [his friend in China];
- [The first applicant’s friend in China] was not detained and charged with offences in relation to downloading and distributing religious material sent by [the first applicant];
- [The first applicant’s friend in China] was not sentenced to 7 years imprisonment for offences of downloading and distributing religious material sent by [the first applicant];
- [The first applicant’s] parents were not summonsed by Fuqing Municipality PSB on suspicion of having been involved in a case where [the first applicant’s friend in China] and [the first applicant] used overseas religious forces against the Chinese Communist Party to jeopardise Chinese state security.”
The Tribunal distinguished this aspect of the first applicant’s claims from his claim to be a practising Roman Catholic. The Tribunal found that he was a practising Roman Catholic and that on return to China he would continue to practise his religion ([58] at CB 269).
In making this finding, the Tribunal had regard to letters that the first applicant had produced from members of the Chinese Catholic community in Sydney, the first applicant’s evidence at the interview with the delegate, and the first applicant’s evidence and that of his two witnesses (Mr H and Ms L) at the first Tribunal hearing ([59] at CB 269).
The Tribunal then properly turned to consider whether, in this light, Australia owed protection obligations to the first applicant ([59] at CB 269). That analysis was set out at [60] (at CB 269) to [65] (at CB 271) of its decision record.
A part of this analysis ([60] at CB 269 to [61] at CB 269 to CB 270) recounts the oral and documentary evidence that informed the Tribunal’s finding as expressed at [58] – [59] (at CB 269). It did so with reference to country information before it about the situation for practising Roman Catholics in China.
The Tribunal addressed the evidence given by Mr H and Ms L as to their understanding of the situation for Roman Catholics practising in China ([62] – [63] (at CB 270)).
The Tribunal noted country information that, in part, was supported Mr H’s evidence, concerning a particular bishop ([62] at CB 270).
The Tribunal set out Ms L’s evidence at [63] (at CB 270). In essence, it understood this evidence to be reflective of her “personal” perspective of the Catholic Church in China. The Tribunal accepted the evidence of both Mr H and Ms L.
For current purposes, it is important to note the following key findings made by the Tribunal ([65] at CB 271):
“Having regard to the country information referred to above in relation to ordinary underground Roman Catholic parishioners in Fujian, as confirmed by witness Ms [L], the Tribunal is satisfied that the chance of any harm whatsoever to [the first applicant] by reason of his Roman Catholic religion is remote. Consequently, the Tribunal finds there is no real chance that if he returns to China [the first applicant] will be persecuted for one or more of the five reasons set out in the Refugees Convention. Furthermore, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the first applicant] being removed from Australia to China, that there is a real risk that he will suffer significant harm.”
In the applicants’ written submissions to the Court, the first applicant correctly identified that the Tribunal relied on Ms L’s evidence. He submitted that the Tribunal “used” her information to refuse his protection visa application because it found that information to be “in conflict” with his claim that he faces a real risk of harm if he were to return to China.
The first applicant submitted that by proceeding in this way, the Tribunal breached s.424AA and s.424A of the Act.
Section 424A(1) of the Act provides that the Tribunal must give to an applicant, in writing, for comment or response, information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision. Section 424AA of the Act is a mechanism by which the Tribunal can discharge this obligation orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
In essence, the first applicant’s complaint is that the Tribunal used Ms L’s evidence in a way that was adverse to his interests, and therefore the obligation in s.424A(1) of the Act was enlivened.
To the extent that Ms L gave evidence about the first applicant personally, that is, his religious practice in Australia, the Tribunal accepted this evidence. It made findings positive to the first applicant in this regard. In this light, Mr L’s evidence in this regard, was not information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision.
In contrast to this, Ms L’s evidence about her personal perspective as to religious practise in China was information, that with the country information referred to by the Tribunal, was a part of the reason for affirming the delegate’s decision.
However, I agree with the Minister’s submission that such information was information about the situation in China concerning Roman Catholics, and their practice of their religion in China. In that light, this was information that was “country information”, that is, it was information that was not specifically about the applicant or any other person and rather, was about a class of persons of which the applicant claimed to be a member. As such, this “information” fell within the exception at s.424A(3)(a) of the Act from the obligation set out in s.424A(1) of the Act.
To be clear, while Ms L drew on her own observations of the situation in China as it related, in part, to her own family’s experience, the “information” on which the Tribunal relied, was information about practising Roman Catholics in China generally. That is, a class of persons, rather than an individual.
The relevance of Ms L’s evidence to the first applicant’s claims was to present a perspective based on her observations and experiences of a class of persons in China, namely Roman Catholic practitioners.
I note, also for the sake of completeness, that Mr H’s evidence was found to be of limited assistance given that he had not lived in China, but had lived in Singapore. This was a finding reasonably open to the Tribunal to make on what was before it. For current purposes therefore, given its limitations, it cannot be said that Mr H’s evidence was considered to be relevant to the disposition of the review.
To the extent that the applicants’ written submissions complain that the Tribunal did not give the first applicant the opportunity to comment on the Tribunal’s “findings”, the Tribunal’s evaluation of the evidence before it is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 and VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471).
The second matter raised for consideration by the applicants’ ground and submissions is that the Tribunal either did not consider the first applicant’s claims, or did not give proper consideration to them, or did not assign the appropriate weight to some of the documentary evidence that the first applicant had submitted.
There is nothing on the evidence before the Court to indicate that the Tribunal misunderstood any of the first applicant’s claims. Nor that it failed to consider any part of his claims.
The assertion that it failed to give proper consideration, in the circumstances, does not rise above an expression of grievance with the Tribunal’s findings.
As set out above, the Tribunal did not accept the first applicant’s claim that he sent religious material to his “friend” in China. On the evidence before the Court, the Tribunal gave appropriate consideration to this claim, and gave a detailed analysis of the first applicant’s written claims and oral evidence.
The Tribunal rejected the first applicant’s claims in this regard, on the basis of its adverse finding as to his credibility, that is, the credibility of his evidence that related to this particular claim. The Tribunal’s conclusion, and the findings that informed it, were all reasonably open to it on what was before it. The Tribunal’s adverse credibility finding was explained in a cogent and intelligible fashion probative of the evidence before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) ALJR 405; (2000) 58 ALD 609 (“Durairajasingham”), Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413).
The first applicant’s complaint is also that the Tribunal failed to assign appropriate weight to his evidence (“proofs”) (see, in particular, with reference to [48] (at CB 266), [55] (at CB 268) and [57] at CB 269)).
However, as the Minister submitted, the matter of the weight to be assigned to the evidence is for the Tribunal to decide (Durairajasingham). In the current case, the Tribunal gave reasonable and intelligible reasons as to why it assigned certain weight it did to various parts of the evidence before it.
The third issue is that the applicants assert that the Tribunal member was biased against the first applicant. The ground asserts that the Tribunal member had “prejudices” against the first applicant and “decided [his] application beforehand”.
The test for bias is now well settled (see Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 119 ALD 446; (2010) 273 ALR 122 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749). Bias in the form of pre-judgment will be made out where it can be shown that the decision-maker brought a closed mind to the proceedings or is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [72] per Gleeson CJ and Gummow J).
Bias is of course, a very serious allegation to make against an administrative decision-maker. For this reason, it must be distinctly made and clearly proven (Jia Legeng at [69]). In the circumstances, bias is not made out.
In any event, it is rare that bias can be made out with reference to the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303).
In the current case there is no indication, let alone any basis to say that the Tribunal did not bring an open mind to the conduct and disposition of the review.
On the evidence before the Court, the applicants’ complaint of bias is merely an attempt to rationalise, on their part, the Tribunal’s affirmation of the delegate’s decision. I also note in this regard that the Tribunal did not reject all of the first applicant’s claims and evidence. As set out above, it accepted that he was a practising Roman Catholic.
Conclusion
The applicants’ grounds in the application and in the submissions, as explained, do not reveal jurisdictional error. It is therefore appropriate to dismiss the application. I will make that order.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 1 June 2018
0
19
2