Bub18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 395
•9 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUB18 & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 395 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal considered all claims made by the applicant – whether Administrative Appeals Tribunal’s findings were open to it – whether Administrative Appeals Tribunal was biased – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 424A, 424AA, 425, 474, 476 Migration Regulations 1994 (Cth), reg.2.01. Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A. Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v You [2008] FCA 241 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| First Applicant: | BUB18 |
| Second Applicant: | BUC18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 978 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 February 2020 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2020 |
REPRESENTATION
| Applicants: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Mr Lenny Leerdam (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 978 of 2018
| BUB18 |
First Applicant
| BUC18 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 March 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 21 October 2015 refusing the applicants Protection (Class XA) visas (“Protection Visa”).
The applicants are citizens of China and of Christian faith, who fear harm from the authorities and the “black society” in China. The second applicant is the spouse of the first applicant. Both are part of the same family unit.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicants’ claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
The applicants arrived in Australia on 12 May 2014 as holders of visitor visas that were valid until 12 August 2014.
On 11 August 2014, the applicants lodged an application for Protection Visas with the Department of Home Affairs (“the Department”).
On 21 October 2015, the Delegate refused the applicants’ application for Protection Visas.
On 18 November 2015, the applicants’ application for review of the Delegate’s decision was received by the Tribunal.
On 16 March 2018, the Tribunal handed down its decision affirming the decision of the Delegate not to grant Protection Visas.
On 9 April 2018, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A 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.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicants’ application for Protection Visas
The first applicant’s written claims were summarised by the Delegate as follows:
“The applicant claims that on 12 February 2012 he was stopped on No 4 National Highway (G4) in Ziaowangzhuang near to Zhangzhou city, arrested and taken to Zhenzhou PSB with his childhood neighbour and friend XZ. At Zhenzhou PSB he was separated from XZ and subjected to interrogation. The police were brutal. They mistreated and tortured the applicant. The applicant was then transferred to Zhenzhou No 1 Detention Centre. The applicant claims he was released from detention after his wife paid a 100,000 RMB bribe to the police.
The applicant claims he was driving XZ to Beijing to lodge a complaint about official corruption in her workplace, Audit Bureau of Xun County government where she and her husband worked as accountants.
The applicant claims XZ sought refuge with him after her husband was arrested for lodging a complaint about corruption and the misappropriation of funds provided to Xun County to clean up the pollution. He claimed the money was provided to clean up pollution in XZ’s home village, Laoguanzui Village, but after it was misappropriated the river became polluted and the village became a cancer village.
The applicant was harassed after his release from detention and he was threatened and beaten up by the black society who was employed by the corrupt officials or their families. When he was assaulted by the black society he could not get any protection from the police. All this made it impossible for the applicant to survive in China and he decided to go overseas.
The applicant and his wife [redacted] arrived in Australia on 12 May 2014 to attend the National Manufacture Week 2014 in Sydney.
If the applicant returns to China he will be subjected to persecution and his life will be seriously threatened. He will be killed by the police or the black society. He has recently been informed that XZ and her husband Mr ZHOU have already died at the detention centres.”
The Delegate’s decision
On 16 June 2015, the first applicant attended an interview with the Delegate.
The Delegate explored the applicants’ claims at the interview and put to the first applicant concerns it had about his evidence, noting his responses. The Delegate cited contradictions and inconsistencies in the applicants’ evidence.
The Delegate enquired as to why the first applicant waited so long after his release from detention before leaving for Australia. The first applicant explained that he was beaten and his children threatened when visited at his home address by the black society. The first applicant said that this happened sometimes twice a week, although he did not remember clearly. The Delegate considered it unlikely that the applicant would not have a clear recollection of frequent, twice-weekly home invasions by thugs and would not have therefore thought about escaping the claimed persecution for several months. The Delegate also considered it unlikely that if the applicant was fleeing persecution he would have waited a further 3 weeks from the date his visa was granted before leaving the country.
The Delegate enquired as to why the first applicant went with his wife to Australia but left his son and daughter unprotected in China. The applicant said the black society told him that if he left China and his children stayed behind they would be safe. The Delegate noted that it seemed unlikely that a mother and father would abandon their teenaged children in these circumstances. The Delegate did not accept that the applicant would be convinced by the word of the black society that his children would be safe if he left the country.
The Delegate found the first applicant’s testimony lacked credibility, noting that he was unable to provide any evidence of his arrest or detention. The Delegate also noted that the applicant did not provide evidence of the medical treatment he claimed to have received as a result of being beaten.
As a result of the discrepancies in the applicant’s claims and after having regard to relevant country information, the Delegate was not satisfied that the first applicant had substantiated his claims that he was arrested, detained and tortured for assisting his former neighbour and friend to go to Beijing to lodge a complaint.
The Delegate considered oral claims made by the first applicant at the end of the interview regarding the applicants’ religion and church attendance. As these claims were raised towards the end of the interview and had not previously been made, the Delegate allowed the applicants a further 7 days to provide any additional statements regarding Christianity. The applicants’ agent subsequently provided the Department with two letters from the Chairman of the Executive Committee of the Padstow Chinese Congregational Church. After considering these letters in light of the earlier interview, the Delegate found that the applicant had not made a claim about religion.
Ultimately, the Delegate was not satisfied the first applicant has a real chance of being persecuted for a Refugees Convention reason and was therefore not satisfied that the applicant’s fear of persecution was well-founded.
On 21 October 2015, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Tribunal’s review and decision
The background of the matter and the Tribunal’s decision are accurately summarised in the submissions of the first respondent as follows:
“Background
2. The applicants are citizens of China, and are a husband and wife. They arrived in Australia on 12 May 2014 as holders of subclass 600 Visitor visas.
3. On 11 August 2014, the applicants applied for protection (Class XA) visas.
4. The applicants claimed that a childhood friend of the first applicant, XZ, had lodged a complaint about corruption within the Xun Country government, and when it was discovered that she was behind the complaint she fled and hid at the first applicant's house. The first applicant subsequently drove her to Beijing. While driving to Beijing the car was stopped and the first applicant and XZ were detained by the police. The first applicant was interrogated and tortured and was eventually released after the second applicant paid a bribe. After his release the first applicant was harassed by the authorities and was threatened and assaulted by the “black society”, who were employed by corrupt officials. He claimed to fear harm from the police and the black society if he returned to China.
5. The applicants also provided letters from the Padstow Chinese Congregational Church, stating that they had been attending Church services in Australia, and a letter signed by members of a Bible study group.
6. The application was refused by a delegate of the first respondent on 21 October 2015.
7. The applicants applied to the AAT for review of the delegate's decision on 18 November 2015.
8. On 11 December 2017 the applicants' migration agent provided the following documents in support of the application:
8.1 Statutory declaration by the first applicant, maintaining reliance on the claims advanced in his visa application.
8.2 Letters from Padstow Chinese Congregational Church regarding the Church attendance of both applicants while in Australia.
8.3 Letters from members the Church congregation regarding the Church attendance of both applicants while in Australia.
9. The applicants attended a hearing before the AAT on 21 December 2017.
10. On 10 January 2018, the applicants' migration agent provided the following documents:
10.1 Statutory declaration of the first applicant addressing matters put to him during the AAT hearing.
10.2 Baptism certificates and certificates of Church membership.
11. On 16 March 2018, the AAT affirmed the decision under review.
The decision of the Tribunal
12. The AAT noted that the second applicant's claims would be reliant on the AAT's assessment of the first applicant's claims, [86]
13. The AAT found that the first applicant was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining protection visas due to:
13.1 The first applicant changed his evidence regarding XZ and the dates she arrived at his home from 8 February 2014 to 8 January 2014 to 9 February 2014, between his application and during the Departmental interview, [26];
13.2 The AAT raised concerns regarding the first applicant's claim that XZ managed to evade arrest in the context of country information which indicated that China used a real-name ticket purchasing system and was of the view that the authorities would have had the ability to track her whereabouts, [28]-[30];
13.3 The AAT found the evidence that the Chinese authorities continued to harass the first applicant after his release from detention to be implausible, [31]-[33];
13.4 The first applicant changed his evidence regarding whether his wife was visited by the Police and his house was searched whilst he was in detention. In the interview he initially responded that this was not the case, but at the AAT hearing the first applicant stated that his wife may have been visited by the Police and perhaps the house was searched, but he did not know. The first applicant indicated that the Police raided his home after he left for Australia. The AAT found this evidence to be implausible, firstly the AAT expected that his wife would have informed him and secondly the AAT found it implausible that the Police would have waited three months to raid his house after his release from detention, [34]-[36].
13.5 The first applicant and second applicant gave inconsistent evidence regarding the first applicant's injuries during detention, [37]-[40].
13.6 The AAT had concerns regarding the evidence relating to the "black society" as the first applicant had not made these claims previously and the AAT did not accept and found it implausible that the applicants would have left their children in China without their parents to protect them. Further, the applicants gave inconsistent evidence regarding gang members and whether their children had any issues with them, [41]-[46];
13.7 The first applicant had given inconsistent evidence regarding his criminal record, [47]-[49];
13.8 The first applicant gave inconsistent evidence relating to the problems he faced leaving China, [50];
13.9 The AAT raised the issue with the first applicant that if he had a criminal record and was of ongoing interest to the Chinese authorities that it doubted he would have been able to retain his passport, was not stopped at the airport and prevented from leaving China, [51]-[54];
13.10 The AAT did not accept that the applicants delayed leaving China as their friend delayed in informing them that their visas had been granted, [55]-[56];
13.11 The AAT did not accept the applicants' explanation for why they delayed lodging their protection visa application after arriving in Australia, [57]-[59];
13.12 The AAT found that the inconsistent evidence given in relation to his visitor visa and his protection visa raised concerns in relation to his credibility and the veracity of his claims made in his application for the protection visas, [60]-[63];
13.13 Neither applicant made any claims in relation to religion in the protection visa application and the AAT was of the view that if the first named applicant was a genuine convert to Christianity he would have said so during his interview with the Department, [64]-[68]. The first applicant was asked at the AAT hearing why he had provided letters from the Church and he responded, “no specific reason. Just my faith”, the AAT was of the view that the first applicant's claims in relation to religion were opportunistic and not genuine, [69]-[73];
13.14 The first applicant's evidence at the AAT hearing indicated he had very little knowledge of the Bible, [74]-[75]. The AAT also noted that the first applicant did not make any claims in relation to religion until the end of the hearing, [77];
13.15 In regards to the written statement from the first applicant stating that if the AAT had asked his wife questions about Christianity the AAT would have been able to sympathise with their situation, the AAT noted that it asked the second applicant if she had anything else to say and she did not, [78]-[82];
13.16 The AAT was not satisfied that the submissions made by the first applicant were new claims made on behalf of the second named applicant referring to the fact that she had numerous opportunities to make these claims and she did not do so, [83]-[84].
14. The AAT had regard to the letters from various church members, but placed little weight on this evidence, as it had not been tested, and there were inconsistencies in their evidence in relation to when the first named applicant started attending Church in Australia, [85].
15. The AAT did not accept the first applicant's claim that XZ and her husband collected evidence of corruption at Xun County government and sent it anonymously to the Henan Provincial Department of Supervision and the Bureau of Corruption Prevention in Henan. Accordingly the AAT did not accept any of the claims in relation to the investigation or the events which flowed from that. The AAT did not accept that the first applicant left China for any of the reasons claimed, or that he was of adverse interest to the Chinese authorities or any gangs. The AAT did not accept that the first applicant feared returning to China for any of the reasons claimed, [90].
16. It followed that the AAT did not accept that the second applicant was at risk of serious harm or significant harm for any of those reasons if she returned to China, [91].
17. The AAT did not accept that the applicants were genuine converts to Christianity or that they would seek to practice Christianity upon their return to China. The AAT did not accept that the applicants would be at risk of serious harm or significant harm due to religion, [92].
18. The AAT found that the applicants did not satisfy sections 36(2)(a) or 36(2)(aa) of the Act, [94]-[98].”
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 30 April 2018, the first applicant attended a directions hearing before a registrar of this Court. On that occasion, the first applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his language. The applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The first applicant confirmed that he relied on the grounds contained in an Application filed on 9 April 2018 as follows:
“1. The Tribunal failed to give me a fair chance to comment on the information that the Tribunal used as a part of reasons to affirm the Department’s decision. For example, the Tribunal failed to give genuine opportunity to common on the information obtained from the Department interview. Although the Tribunal did mention it at the hearing. I indicated the Tribunal clearly that I did not understand the question. I believe that the Tribunal should provide such information to me in writing if she really intended to give me a fair chance.
2. The Tribunal made her finding significantly based on her own assumption or imagination. For example, the Tribunal made its finding regarding XZ’s trip to me. The Tribunal obviously has tong bias against me. She has never ever taken genuine attempts to consider my evidence given at the Tribunal as well as my post hearing submission. Furthermore, the Tribunal repeatedly used the words of “the Tribunal is of the view” or “the Tribunal would expect” in her decision. I believe that it is the evidence that the Tribunal made its finding solely based on her own prejudice against me.
3. The Tribunal fairly consider that my wife and I are Christians. Particularly, my wife is a genuine and very devout Christian. She has played an active role at Padstow Chinese Congregation Church. Particularly, our application has widely supported by our church members. Unfortunately, the Tribunal failed to consider the written evidence by the Church and the Church members.”
(Errors in original)
Each of the grounds was interpreted for the first applicant and he was invited to make submissions in support of each of the grounds and in support of the application generally.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction.
In submissions, dated 24 October 2019 and filed in support of their application for judicial review, the applicants submitted as follows:
“1. I believe that the Tribunal member has unreasonably placed little consideration on crucial pieces of evidence I have submitted. I am convinced the Tribunal is biased against me.
“2. I have submitted multiple documents that are all letters of support or letters of confirmation that my wife and I am truly devoted Christians….
“3. Very much importantly, the above-mentioned documentary evidences prove that my wife and I are committed to our faith and that we practice our faith, actively, regularly and consistently. However, it seems to us that the Tribunal has placed little consideration on these important evidences, and continues to doubt our claims of being committed to our faith. I accept that the Tribunal did ask a few of questions regarding to our faith, but I cannot accept that the Tribunal refused to consider our faith just based on such a few questions. This is absolutely incorrect. I believe the Tribunal's little regard for our documentary evidences is unfair, especially when these evidences are so crucial to our claims and to our case.
4. It is important to us that the Tribunal can be convinced that my wife and I are truthful, devout followers of Christianity because our faith is very relevant to our fears of returning to China.
5. Significantly, the Tribunal failed to consider that we are from Henan Province in China, and that Henan Province, the crackdown of Christians is the highest in the entire country. As devout Christians, it is especially dangerous for me and my wife to return to our home place in Henan, and we will, and must, be subject to persecution by the Chinese government due to our Christian belief.”
I understand the thrust of the submissions to assert that the Tribunal had unreasonably placed little consideration on crucial pieces of evidence, being letters of support from Christians in Australia, including from the chairman of the Padstow Chinese Congregational Church; and that the Tribunal was biased against the applicant.
Otherwise, the applicants’ written submissions are as follows:
Ground 1
Ground 1 asserts that the Tribunal failed to give the applicants a fair chance to comment on information which the Tribunal used to affirm its decision. In particular, Ground 1 referred to information obtained from the Departmental interview. Ground 1 asserts that the applicants did not understand “the question” being asked by the Tribunal. Ground 1 asserts that such information should have been given to the applicant in writing to give the applicants a fair chance to comment.
The information from the Departmental interview and referred to in the Delegate’s decision record is not information that enlivens any obligation under s.424A(1) of the Act. Such information is excluded by s.424A(3)(b) of the Act, as it was information given by the applicants to the Tribunal for the purposes of its review (see Minister for Immigration & Citizenship v You [2008] FCA 241 at [16] per Sundberg J).
Otherwise, the Tribunal found the applicants’ evidence to be evasive, contradictory, implausible, unconvincing and inconsistent with country information. The Tribunal also found inconsistencies with the first applicant’s evidence to the Department and his evidence to the Tribunal; inconsistencies between the first applicant’s evidence and the second applicant’s evidence; as well as internally inconsistent evidence given by the first applicant. The Tribunal noted that the first applicant made new claims throughout the hearing and when issues were raised with him, the first applicant repeatedly stated that he could not recall anything. The Tribunal found the first applicant not to be a credible or reliable witness and it identified with great specificity the reasons for that finding.
The Tribunal also noted that during the hearing the first applicant requested additional time to comment on or respond to information that was given to the first applicant pursuant to s.424AA of the Act. The Tribunal noted that the applicant had been granted additional time post hearing and that the first applicant provided a statutory declaration post hearing which the Tribunal considered.
A fair reading of the Tribunal’s decision record makes clear that there was no information which enlivened any obligation under s.424A of the Act. However, it is well established that a tribunal does not fall into error by giving information to an applicant when it was not obliged to do so (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68).
The information given to the applicant allegedly pursuant to s.424AA of the Act was in respect of inconsistencies and thought processes of the Tribunal; and was not otherwise information that constituted a rejection, denial or undermining of the applicants’ claims (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The “information” given by the Tribunal to the applicant purportedly pursuant to s.424AA of the Act is summarised by the first respondent in submissions as follows:
“24.1 The information put to the first applicant at [36] consisted of inconsistencies between the oral evidence of the first applicant and that of the second applicant as to whether the Police came to their home and searched it while the first applicant was in detention.
24.2 The information put to the first applicant at [38] consisted of inconsistencies between the oral evidence of the first applicant and that of the second applicant as to the injuries sustained by the first applicant while in detention.
24.3 The information put to the first applicant at [44] consisted of an inconsistency between the oral evidence of the first applicant and that of the second applicant as to whether they and their children had ongoing issues with gangs.
24.4 The information put to the first applicant at [55] was the date on which the first applicant was granted a visitor visa, and the delay between the grant of the visa and his departure from China. The information put to the first applicant at [57] was the delay between the first applicant's arrival in Australia, and his application for protection, and that the application for protection was lodged the day before his visitor visa expired.
24.5 The information put to the first applicant at [60] was information from his visitor visa application as to his address and place of work, which was not consistent with the information provided in relation to the protection visa application.
…
25.1 For example, the evidence of the second named applicant, taken on its own, did not undermine the applicant's claims. It was only when the AAT compared that evidence to that given by the applicant and found that there were inconsistencies that it became adverse to the applicants' case. This constituted part of the AAT's reasoning processes and did not enliven any obligations under section 424A(1) of the Act. The same is true of the inconsistencies identified between the first applicant's visitor visa application and his protection visa application.
25.2 Similarly, the date on which the first applicant was granted a visitor visa and the date on which it expired were neutral information. The AAT's use of those dates in finding that they were inconsistent with the applicant's claimed fear of harm was part of the AAT's reasoning processes and therefore did not enliven any obligations under section 424A(1) of the Act.”
In any event, even if s.424A(1) of the Act was enlivened by any of the information referred to above, the Tribunal complied with its obligations by giving the information to the applicants orally at the hearing in accordance with s.424AA of the Act. There is nothing to indicate that the Tribunal did not fully comply with the requirements of s.424AA. The applicant has not sought to prove non-compliance by tendering a transcript of the Tribunal hearing. In the absence of such evidence, the Court is entitled to infer that the Tribunal did comply with its obligations (see SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J).
In relation to the applicants’ assertion in Ground 1 that the Tribunal asked them a question that they did not understand, I accept the first respondent’s submission that the applicants’ migration agent was at the hearing and that the applicants were given time after the hearing to respond in writing to the information given to them by the Tribunal. Otherwise, there was no further particularisation of this complaint by the applicants and, as stated above no transcript was provided by the applicants to this Court.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal was biased against the applicants and never made a genuine attempt to consider the applicants’ evidence or the applicants’ post hearing submission. In support, the first applicant said that the Tribunal had confined itself to “its thinking”, and that the applicant is a Christian and does not tell lies.
A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
To the extent that Ground 2 asserts that the Tribunal repeatedly used the words “the Tribunal is of the view” and “the Tribunal would expect”, those phrases by themselves do not demonstrate bias on the part of the Tribunal.
The Tribunal identified in detail the reasons why it did not accept the applicants’ evidence in 18 particulars, spanning some 12 pages and 62 paragraphs.
Ultimately, the Tribunal comprehensively rejected the claims by the applicants of past harm or of being of adverse interest to the Chinese authorities or any gangs in China. The Tribunal did not accept that the first applicant feared returning to China for any of the reasons claimed. The Tribunal found that, as it had not accepted any of the first applicant’s claims in relation to past events in China, it did not accept that the second applicant is at risk of serious harm or significant harm for any of the reasons asserted if she was returned to China.
Whilst the Tribunal accepted that the applicants had attended services and Church related activities at the Padstow Chinese Congregational Church in Australia and had been baptised, the Tribunal did not accept that they are genuine converts to Christianity or that they would seek to practice Christianity upon return to China.
In the circumstances, the Tribunal found that the applicants were not persons to whom Australia has protection obligations either under s.36(2)(a) of the Act or s.36(2)(aa) of the Act.
Those findings of the Tribunal were open to it on the evidence and material before it and for the comprehensive reasons that it gave. Its reasons were detailed, rational and probative of the issues before it. The Tribunal’s adverse credibility findings were based on detailed reasons which identified with particularity the Tribunal’s concern about the evidence before it. In the circumstances, the Tribunal’s findings were not tainted by any failure to afford procedural fairness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal failed to consider the written evidence given by the Church and the Church members. In support, the applicant said that if the Tribunal did not believe his evidence it could have made its own enquiries.
The Tribunal’s decision record makes clear that it had regard to those letters. The Tribunal noted that it asked the first applicant about letters from the Padstow Chinese Congregational Church in the course of exploring his claims to be a Christian. The Tribunal identified the letters of support in the following terms:
“85. The Tribunal has had regard to the letters of support from members of the Padstow Chinese Congregational Church and the Certificates of Baptism and Church Membership. The Tribunal accepts that the authors of these letters are well-meaning and wish to be of support to the applicants. However, there are inconsistencies in their evidence in relation to when the first named applicant started attending Church in Australia. The evidence in relation to the Church studies, training course and Bible study classes the first named applicant attended is inconsistent with his knowledge of the Bible. Their evidence has not been tested and the Tribunal places little weight on this evidence.”
To the extent that the applicant submitted in support of Ground 3 that the Tribunal could have made its own enquiries, there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the circumstances, the complaints in Ground 3 are not made out.
Other complaints raised at hearing
To the extent that the applicants’ written submissions assert that the Tribunal did not have regard to the letters of support provided by other Christians and the Padstow Chinese Congregational Church, that complaint is dealt with in Ground 3 above.
To the extent that the applicants’ submissions assert that the Tribunal was biased against the applicants, that complaint is dealt with in Ground 2 above.
In relation to the complaint in the applicants’ submissions that the Tribunal had little regard for the applicants’ documentary evidence, the consideration of the reasons of the Tribunal as expressed in its decision record make clear that the Tribunal considered in detail all evidence both oral and written provided by the applicants, but was not persuaded by it.
As stated above, the Tribunal findings were open to it on the evidence and material before it, and for the reasons it gave.
Otherwise, the applicants’ submissions restate the applicants’ claims.
To the extent that the applicants’ complaints disagree with the findings and conclusions of the Tribunal, such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, none of the applicants’ further complaints made at the hearing are made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted their responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the first applicant independent country information before it and invited the first applicant to comment upon it.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 9 March 2020
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