BVF15 v Minister for Immigration and Border Protection

[2016] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVF15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] FCCA 169

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 424AA

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: BVF15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2466 of 2015

Judgment of: Judge Emmett

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Laura Weston
(Minter Ellison Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2466 of 2015

BVF15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 8 September 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 4 August 2015 and handed down on 5 August 2015 (“the AAT”).

2. On 22 October 2015, the applicant attended a directions hearing before a Registrar of the Court.

3. At the directions hearing, the applicant was 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 by 5 November 2015, as well as submissions in support, by 6 November 2015.

4. At the request of the first respondent, the matter was listed for hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The first respondent, in written submissions filed on 12 November 2015, accurately summarised the background of the applicant’s claims and the AAT’s decision, as follows:

   “Factual Background

   3. The applicant is a Chinese citizen who initially arrived in Australia on a student visa on 13 August 2013: see Court Book (CB) 120, at [10]. He subsequently applied for a protection visa on 7 January 2014: CB 1-25.

   4. The applicant's claims to fear harm were set out in a document provided with his protection visa application: see CB 29-30. In summary, the applicant claimed to fear harm in China following the compulsory acquisition by the government in March 2012 of land he had contracted for farming. The applicant claimed that he signed a document for the acquisition of the land and commensurate compensation, but that he did not receive compensation in accordance with that agreement. He claimed to have then petitioned the Complaints Bureau of Gaocheng City, and later to have lodged an appeal with a Court in November 2012.

   5. The applicant claimed that in March 2013, youths came to his home and smashed things at his home and threatened to harm him if he petitioned the government again. After calling the police, the applicant stated that he was apprehended, taken to the local police station and was told he could not go until he withdrew his appeal. He claimed he eventually relented and withdrew the appeal after being detained for a day, and that the police told him if he did not stop petitioning he would face more serious harassment. The applicant claimed he feared persecution and fled to Australia as a result.

   6. On 3 July 2014, the applicant submitted two documents and translations purporting to be a compensation agreement and a lease agreement to the delegate: see CB 53-59.

   7. On 22 July 2014, the delegate refused to grant the applicant a protection visa: CB 72-84.

   8. On 19 August 2014, the applicant applied to the Tribunal for review of the delegate's decision: CB 86-87. By letter dated 30 April 2015, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case: CB 96-97. The applicant attended that hearing, and was assisted by a Mandarin interpreter: CB 105-108.

   9. On 4 August 2015, the Tribunal affirmed the delegate's decision: CB 118-126.

   Tribunal Decision

   10. The Tribunal identified the issue in the case to be the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection: CB 120, at [9].

   11. After summarising the applicant's background and claims (CB 120, at [10]-[6]) and DFAT country information regarding land acquisition and compensation in China (CB 121, at [17], the Tribunal turned to consider the applicant's claims. The Tribunal accepted that the applicant leased land for farming which was compulsorily resumed, and that this resulted in a compensation proposal which the applicant signed and to which he agreed: CB 121-122, at [21]. However, the Tribunal had significant credibility concerns with the applicant's claims that he was not paid compensation due for the appropriation of his land, and his claims that he lodged a petition and appeal that led to threats and harm by the police and others: CB 122, at [22]. The Tribunal's reasons for its credibility concerns were based on the following matters:

   (a) various inconsistencies it identified in the applicant's evidence given at different points in the application and review processes: CB 122-123, at [23]-[35]; and

   (b) the overall sequence of the applicant's claimed actions did 'not ring true' and, while not determinative of its adverse credibility findings, buttressed its other credibility concerns (at CB 124, at [36]-[40]).

   12. Having cumulative regard to these concerns, the Tribunal was not satisfied the applicant was truthful in relation to key aspects of his claims: CB 124-125, at [41]. Specifically, the Tribunal was not satisfied that (see CB 125, at [42]):

   (a) the applicant was truthful in relation to the failure of the village committee to pay the agreed compensation or that the applicant lodged a petition and appeal, and attempted to lodge a further appeal, regarding the village committee's actions;

   (b) unknown men ransacked the applicant's home due to his petition and appeal, or for any other reason;

   (c) the applicant was detained and questioned by police who forced him to sign a document stating he would not petition or appeal;

   (d) the applicant was harassed either by phone or in person over the claimed incident at the police station;

   (e) that the applicant's wife and children have moved to a different location because of the claimed difficulties faced by the applicant;

   (f) there is any basis on which the applicant would seek to lodge petitions or appeals on any matter relating to land acquisition or otherwise should he return to China.

   13. While the Tribunal accepted that independent evidence shows land compensation disputes in China can involve local governments acting in a persecutory way against complainants, it did not accept this happened to the applicant: CB 125, at [43].

   14. The Tribunal noted that during the hearing the applicant showed it some pictures on his mobile phone showing protesters in a town setting, who the applicant said were in a neighbouring village protesting over compulsory land acquisition and compensation. While the Tribunal was prepared to accept that as true, it was not evidence that corroborated the applicant's own factual claims, and the Tribunal found the pictures had no probative value: CB 125, at [44].

   15. Given its factual findings, the Tribunal was not satisfied there was an actual chance of the applicant suffering serious harm in the reasonably foreseeable future in China as a result of the matters raised in his claims, and was not satisfied that there was any other basis on which he faced a real chance of serious harm: CB 125, at [45]. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for the purposes of the Refugees Convention and found, in any event, that the harm claimed to be feared by the applicant was not for a Convention reason: CB 125, at [46]. The Tribunal also found that, given its factual findings, the applicant did not satisfy the complementary protection criterion: CB 125, at [47].”

8. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

9. The applicant confirmed that he had not filed any further documents, either in accordance with the Court’s directions or otherwise. 

10. The applicant confirmed that he relied on the grounds disclosed in his application for judicial review, filed on 8 September 2015. Those grounds are as follows:

    “1. AAT failed to consider my actual living condition in China.

    2. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

    3. The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe.

    4. AAT failed to prudently consider my risk if I return to origin.

    5. I hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me.”

    (Errors in original.)

11. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

12. Prior to inviting the applicant to make submissions in support of the grounds, I explained to the applicant that the role of this Court was very different to that of the AAT. 

13. I explained to the applicant that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. 

14. I explained that the only issue before this Court was whether or not the decision of the AAT was made according to law or was affected by jurisdictional error. I explained to the applicant that a disagreement with the findings and conclusions of the AAT rarely, by itself, establishes such a mistake.

15. Each of the grounds is a bare statement which does not identify or particularise an error capable of review by this Court.  The applicant provided no further relevant particulars in support of any of the grounds and none of the grounds, without more, is capable of establishing jurisdictional error on the part of the AAT.

Ground 1

1. Ground 1 of the applicant’s application for judicial review asserts that the AAT failed to consider the applicant’s actual living conditions. However, without any further particularisation, it is not clear what the nature of that complaint is, or what it intended to address in the AAT’s decision record. 

2. The AAT summarised in detail the applicant’s claims and identified with particularity the inconsistencies in the applicant’s evidence. The AAT did not find the applicant’s claim that he had suffered harm as a result of the compulsory acquisition of his land in China to be credible.

3. The AAT rejected the applicant’s claims that the village committee failed to pay him compensation and that he had been engaged in petitioning and appeal activities in relation to that failure. The AAT also rejected the applicant’s claims that there were threats made by the police and other parties to the applicant. 

4. The AAT also considered whether the applicant satisfied the complementary protection criterion. However, based on the AAT’s adverse factual findings in respect of the applicant’s claims, the AAT was not satisfied that there was a real risk of the applicant suffering significant harm if he returned to China as a result of any of the matters alleged in his application. Accordingly, the AAT was not satisfied that the applicant met either the Convention criterion under s.36(2)(a) of Migration Act 1985 (Cth) (“the Act”) or the complementary protection criterion under s.36(2)(aa) of the Act.

5. The AAT’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the AAT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the AAT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

6. Accordingly, Ground 1 does not raise an arguable case for the relief claimed.

Ground 2

1. Ground 2 of the applicant’s application for judicial review asserts that the AAT unreasonably suspected the truthfulness of the applicant’s claims because of an absence of evidence.

2. This claim was not supported by particulars, oral or written, and the applicant declined to make any further submissions in support of this ground. 

3. The AAT’s decision record makes clear that the applicant provided to it the originals and translated versions of the lease agreement and the compensation agreement with the village committee. The AAT accepted those documents as accurate, but it found they were not evidence that corroborated the applicant’s own factual claims and therefore gave that evidence little weight.

4. As stated above, the AAT identified with specificity the concerns it had about the applicant’s evidence, which it found to be inconsistent in several identified respects. The AAT gave to the applicant information that it considered may be the reason, or part of the reason, for affirming the decision under review in accordance with s.424AA of the Act. The AAT noted the applicant’s responses but was not satisfied with his explanations.

5. The AAT noted that a liberal approach to evidence was required by it in considering the applicant’s claims. It accepted that human memory is fallible and inconsistencies can occur, which may contribute to the lack of consistencies in the applicant’s evidence. The AAT noted that some of the difficulties identified with the applicant’s evidence related to relatively minor details. However, the AAT had concerns about aspects of the applicant’s behaviour which it considered to be illogical in the context of his claims. The AAT also noted new evidence that was provided for the first time at the hearing and that the new evidence was inconsistent with the applicant’s prior claims. 

6. The AAT also had regard to independent evidence which suggested that land compensation disputes are common in China. It noted that these disputes can involve local governments acting in a harmful and persecutory way against complainants and the confidence in the appeals system is low. However, having regard to its adverse finding in respect of the applicant’s credibility, the AAT was not satisfied that the applicant had fallen victim to this behaviour.

7. The AAT’s findings would appear to have been open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. As noted above, credibility findings are a matter par excellence for the AAT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. In the circumstances, the applicant’s complaint in Ground 2 does not raise an arguable case for the relief claimed.

Ground 3

1. Ground 3 asserts that the AAT’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.

2. The applicant did not provide any particulars, either oral or written, in support of this ground of review. 

3. It is well established that the claim of bias is serious and requires evidence. 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 AAT 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).

4. A fair reading of the AAT’s decision does not disclose any prejudgment on the part of the AAT in the sense that the AAT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

5. A fair reading of the AAT’s decision also does not suggest that the AAT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceeding, the matters in issue and the conduct of the AAT, might reasonably apprehend that the AAT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

6. Accordingly, Ground 3 does not raise an arguable case for the relief claimed.

Ground 4

1. Ground 4 of the applicant’s application for judicial review stated that the AAT failed to consider the risk to the applicant if he was to return to China. 

2. In support of that ground, the applicant stated that the project of land acquisition in his village was still underway and that if he was to return to China, he would be persecuted for his alleged conduct in China.

3. As stated above, the AAT comprehensively rejected the applicant’s claims of suffering harm in China for any reason related to the compulsory acquisition of his land.  The AAT was not satisfied that there was a real risk of the applicant suffering significant harm as a result of any of the matters alleged in his application.

4. Accordingly, the AAT was not satisfied that the applicant met either the Convention criterion under s.36(2)(a) of the Act or the complementary protection criterion under s.36(2)(aa) of the Act.

5. Those findings and conclusions would appear to be open to the AAT on the evidence and material before it, and for the reasons it gave.

1. In the circumstances, Ground 4 does not raise an arguable case for the relief claimed. 

Ground 5

1. Ground 5 of the applicant’s application for judicial review is a statement by the applicant that he hoped this Court could consider his situation in China and do justice for him.

2. Such a statement does not identify an error capable of review by this Court. 

Conclusion

1. While I make no final decision as to whether or not the AAT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the AAT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The AAT referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 8 September 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 11 February 2016