BVM15 & Ors v Minister for Immigration & Anor
[2017] FCCA 3141
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVM15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3141 |
| Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant the applicants protection visas – whether Tribunal took into account irrelevant considerations – whether Tribunal misrepresented to the third applicant the claim the third applicant made – whether Tribunal made any jurisdictional error in circumstances where the third applicant accepted as correct the Tribunal’s incorrect characterisation of the third applicant’s claim – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 425(1), 425(1)(a) Migration Legislation Amendment Act (No.1) 1998 (Cth), s.3 |
| Cases cited: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275 Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 |
| First Applicant: | BVM15 |
| Second Applicant: | BVN15 |
| Third Applicant: | BVO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2476 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 25 & 28 November 2016 |
| Date of Last Submission: | 28 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
The second applicant appeared in person as litigation guardian for the first
applicant assisted by an interpreter.
| Solicitor for the First Respondent on 25 November 2016: Solicitor for the First Respondent on 28 November 2016: | Mr T Galvin of Mr J Pinder of |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2476 of 2015
| BVM15 |
First Applicant
| BVN15 |
Second Applicant
| BVO15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are citizens of the People’s Republic of China (China), seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicants Protection (Class XA) visas (Protection visa).
The second and third applicants are husband and wife, and the first applicant is their infant child. The first applicant (applicant) applied for a Protection visa on 17 December 2013. The second and third applicants seek protection as members of the same family unit as the applicant. They did not make any separate claims for protection.[1]
[1] CB16 and CB24
Claims for protection
In her application for a Protection visa, the applicant claimed to fear harm from creditors, contractors, and authorities in relation to an injury that was caused to a construction worker who had been working on a property owned by her maternal grandparents.[2] The applicant’s maternal grandparents had the family home demolished and rebuilt. They “contracted the construction to a builder who will pay the construction workers and their entitlement”.[3]
[2] CB1-15
[3] CB9
During construction a worker was injured. The injured worker “claimed the damage against the builder who has threatened not sue him”, and, as a result, the worker turned against the applicant’s grandparents. The applicant’s grandparents sought to have the matter dealt with by the authorities. They were unaware, however, that the builder had a close relationship with the authorities and had bribed them. The authorities consequently accused the applicant’s family of illegal construction, and her grandparents were held liable to pay the damage incurred. The builder also threatened the applicant’s grandparents that if they do not pay compensation to the injured worker he would ask the authorities to demolish the building. The grandparent’s did not pay, and the building was demolished. The builder also asked a thug to intimidate the applicant’s grandparents.
The injured worker took legal action against the applicant’s grandparents, who will win the case as he has the support of the builder. While the applicant’s grandparents can defend the action, in reality it is defenceless because the builder, the injured worker, and the authorities have colluded against the applicant’s grandparents.
As a consequence of the applicant’s grandparents’ house being demolished, they are unable to generate any income to pay back their creditors. The applicant claims that if she is to return to China, she will be harmed by the creditors who have not received payment from the applicant’s grandparents; she will be harmed if her grandparents and parents continue to deny liability and pursue their rights against the builder; and she will be mistreated if her family challenges the authorities in respect of the unfair treatment they have received. The applicant also claims that she is “extremely vulnerable” as she is little and her family will not be able to provide her with any protection if she is removed to China.
Tribunal’s reasons
The Tribunal was not satisfied the third applicant was a credible witness, and found that the claims advanced on behalf of the applicant had been created for the purpose of strengthening the applicant’s Protection visa application.[4] The Tribunal relied on a number of matters.
[4] CB147 [33]
First, the Tribunal considered that at the core of the applicant’s claim to fear harm was the allegation that the applicant’s grandparents had a judgment made against them in a Chinese court in relation to an injury suffered by a worker who was said to be working for a builder in the construction of the grandparents’ new home; and that the builder had in some way orchestrated that the grandparents had a liability for the injured worker. The Tribunal, however, found the third applicant’s evidence about this issue to be “overall general in nature and limited in providing any real detail”.[5] The Tribunal referred to the third applicant’s responses to being asked to provide details about aspects of the claims made by the applicant, such as the reference to the payment of “bribes” and “collusion” between authorities and the builder. The Tribunal found that in her responses the third applicant “essentially resiled from those claims by referring to interpretation errors regarding the use of those terms that appeared in the protection visa application”.[6] The Tribunal also referred to the third applicant having very limited contact with her parents and her not being close to them; and that she found out only in February 2015 about the judgment which she claimed was given in December 2013. The Tribunal was of the view that the third applicant did not have any significant knowledge of the developments in China involving her parents.[7]
[5] CB146, [31]
[6] CB146, [31]
[7] CB146-147, [31]
Second, the Tribunal found the third applicant’s evidence about the financial arrangements relating to the demolition of her parents’ home and the partial construction of a new home raised matters of concern about the credibility of the claims. The Tribunal noted that the third applicant’s evidence about the reasons her parents borrowed a large sum of money to construct a new home was “very vague” and “do not seem credible, having regard to all the circumstances in terms of the amount borrowed, the monthly interest charged and the claim that the primary applicant’s grandparents were retired when the decision was made to borrow the money and construct the new home”.[8] The Tribunal referred to the following:
a)The third applicant told the Tribunal that her parents had retired at the time the money had been borrowed to construct the new home; she then said that the interest rate per month on the borrowed money was 120,000RMB and that her father’s income was “maybe” 1,000 RMB per month and that her mother did not work.[9]
b)The third applicant said the money was borrowed from friends and a money lender. The third applicant’s father had retired but he had returned to work in construction.
c)The third applicant eventually told the Tribunal she thought her parents had decided to build the home to assist the third applicant’s brother when he got married. There was evidence, however, that the third applicant’s brother had returned to China from Argentina, but he was not living with the third applicant’s parents.
[8] CB147, [31]
[9] This is an error. The third applicant’s evidence was that her father’s income was 4,000RMB.
Third, the Tribunal relied on the third applicant’s inability to provide a credible reason why the injured worker, who was employed by the builder, was able to successfully sue the applicant’s grandparents for the claimed injury, or why the partially completed house was demolished. The third applicant was also unable to explain why her parents still owned the land on which the house had been partially completed and then demolished, but had not sold it to satisfy the judgment debt.[10]
[10] CB147, [32]
Fourth, the third applicant was unable to indicate to the Tribunal any credible reason for her claim that she would or could be liable for the payment of the judgment debt or any other amounts for which her parents may be liable; and the third applicant struggled to explain how the applicant would be at risk of harm because of the issues concerning the applicant’s grandparents.[11]
[11] CB147, [32]
In these circumstances, the Tribunal found that the third applicant had created the claims advanced on behalf of the applicant in an effort to strengthen the applicant’s Protection visa application.[12] The Tribunal therefore did not accept that the applicant’s grandparents were constructing a home and engaged a builder for that purpose; that they borrowed money to finance the construction; that an injured worker employed by the builder successfully sued the applicant’s grandparents; that the grandparent’s partially completed home was demolished by Chinese authorities; or that the applicant’s grandparents have been subject to harassment by people “at the behest of the builder”, or claims for payment by the injured worker or the Chinese authorities.[13]
[12] CB147, [33]
[13] CB147-148, [34]
Having rejected the factual foundations of the applicant’s clams for protection, the Tribunal concluded the applicant satisfied neither s.36(2)(a) nor s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Grounds of application
The application for review contains three grounds.
Ground 1
The first ground is (errors in original):
The Tribunal failed in taking into account of irrelevant considerations.
In a number of occasions, the Tribunal take account of the third named applicant has no close relationship to her parents. However, the Tribunal did not make a decision on that information raised. The applicant does not know how this would relate to their claims.
The second applicant, who is the litigation guardian of the applicant, appeared at the hearing before me. Ground 1 was interpreted to the second applicant, and he made submissions in response to my invitation. I will first refer to the ground as stated in the application.
Ground 1 appears to claim the Tribunal took into account an irrelevant consideration, namely, the third applicant’s not having a close relationship with her parents. It is true the Tribunal referred to the third applicant’s evidence that she did not have a close relationship with her parents; and it did so on two occasions.
First, the Tribunal treated the third applicant’s not having a close relationship with her parents as part of the “evidence” to which the Tribunal referred as not indicating the third applicant “had any significant knowledge of the developments in China involving her parents”.[14] It was reasonably open to the Tribunal to consider, as relevant to whether the third applicant had knowledge of the events she claimed occurred, the extent to which she was close to her parents. That is so because the third applicant’s knowledge could only have been based on what would have been reported to her by her parents. The Tribunal itself referred to its having stated to the third applicant during the hearing that “the evidence suggested that the third named applicant did not have a close relationship with her parents and in those circumstances that raised issues about what she knew about events in China and also about her claims that she would live with her parents in China if she and the primary applicant returned to China”.[15]
[14] CB146-147, [31]
[15] CB145, [27]
The second occasion on which the Tribunal referred to the third applicant’s not having a close relationship with her parents is where the Tribunal considered the applicant’s claim that the applicant would suffer harm because of a debt the third applicant claimed her parents owed. The Tribunal referred to the third applicant’s explanation of how harm might arise to the applicant, namely, the applicant “might witness conflict between the grandparents and the people seeking money and speculated that fighting might occur as part of any conflict”.[16] The applicant’s not having a close relationship with her parents was relevant to assessing that claim.
[16] CB147, [32]
At the hearing before me the second applicant referred to the Tribunal asking the third applicant how often she contacted her parents, but the second applicant does not remember what the third applicant said in response, although he also said that the third applicant said “not very often”. The second applicant also referred to the Tribunal concluding that the third applicant and her parents do not telephone each other often and from that concluded the third applicant does not have “a very good relationship with her parents”.[17] The second applicant’s complaint appears to be the Tribunal incorrectly found that the third applicant said she did not have a good relationship with her parents.
[17] T15.25
This does not accurately record what the Tribunal understood the third applicant to have said about her relationship with her parents. The Tribunal did not say the third applicant said she did not have a very good relationship with her parents; the Tribunal said the third applicant conceded she did not have a close relationship with her parents. In any event, even if the Tribunal erred in its characterisation of the third applicant’s evidence about her relationship with her parents, the error was not of sufficient significance to the performance of the tasks the Tribunal was required to carry out such as to have resulted in its decision being affected by jurisdictional error.[18]
[18] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]
Ground 1, therefore, fails.
Ground 2
The second ground is (errors in original):
The Tribunal erred in arriving at a conclusion without supported evidence.
At paragraph 20, the Tribunal worked out the monthly interest of 120,000 RMB to the loan of 600,000 RMB without the provision of supporting evidence.
At the hearing before me the second applicant said that, although he was not present at the hearing before the Tribunal, he had heard the audio recording of the hearing and that the third applicant did not say to the Tribunal that the interest rate per month on the borrowed money was 120,000RMB. The difficulty with that submission, when made, is that the second applicant did not have with him the audio recording, and the applicants did not file any transcript of the hearing. The second applicant also said he had made notes in Chinese of what he understood from listening to the audio recording the third applicant said about the interest that was payable on the loan. I granted the applicants a short adjournment (from Friday 25 November 2016, when the matter first came before me, to 10.15 am on Monday 28 November 2016) to provide the applicant an opportunity to produce to the Court the audio recording, and the document the second applicant said he created that set out what he heard was said by and to the third applicant in Chinese about the amount of interest.
On the resumption of the hearing before me, the second applicant tendered the audio recording. I arranged for the audio recording to be played at the parts on which the second applicant relied. The interpreter at the hearing before me interpreted what the third applicant said in Chinese at the relevant portions of the audio recording. The portions dealt with two topics. One was the interest that was payable by the third applicant’s parents; and the other was two statements by the Tribunal member to the effect he had difficulty in accepting particular claims the third applicant made. I first deal with the portion of the audio recording relating to interest; and it will be useful to first set out what was said in English.
The starting point is at about T09.56 into the second of the two discs that contain a recording of the hearing. There the Tribunal member asked the third applicant how much money her parents borrowed. The third applicant initially said 1 million RMB but then said it was around 600,000RMB. The Tribunal member then asked what sort of interest the third applicant’s parents would have had to pay. The following was then said:[19]
Interpreter: For 10,000 RMB each month they had to pay 120 as interest.
Member:So each month they’d have to pay, for each 100,000RMB they’d have to pay 20,000 dollars a month interest.
Interpreter: Yes.
Member:They’d have to pay 20,000 RMB per month, so they’d have to pay every month 120,000RMB interest.
Interpreter: Yes.
Member:On 600,000?
Interpreter: Yes
[19] Disc 2, at 10:50
At my direction the interpreter before me listened to the relevant portion of the audio recording of the hearing before the Tribunal and interpreted into English the Chinese that was spoken between the interpreter at the Tribunal hearing and the third applicant. The interpreter before me gave the following evidence:[20]
[20] Transcript, 28 November 2016, T13.0-T13.20
HIS HONOUR: Just tell me what you hear and tell me what portion of it are we at?
COURT OFFICER: This is at 10:45
HIS HONOUR: 10:45. All right. Just tell me as best you can, if you can, what you hear is said.
INTERPRETER: Yes. 1.2 cents per 10,000. So that’s – or 10,000 yuan is 120 per month. This is how it’s calculated.
HIS HONOUR: Who says that, the witness?
INTERPRETER: Yes.
HIS HONOUR: Okay.
INTERPRETER: So in that case, for 600,000, he has to pay 20,000 interest per month. So in this case, they have to pay 20,000 yuan interest per month. So total interest would be 120,000. So for 600,000, the interest is 120,000 ….
I am satisfied the interpreter before the Tribunal accurately interpreted to the third applicant what the Tribunal member said, and also accurately interpreted to the Tribunal member what the third applicant said.
There were two other occasions on which the Tribunal member communicated to the third applicant the Tribunal member’s understanding that the third applicant was claiming that 120,000RMB interest was payable each month. The first of the two occasions commenced at around T12.28 into the second disc where the following was said:
Member:So, in terms of the Australian exchange rate 100,000RMB is, how much Australian?
Interpreter: 50,000 Australian dollars.
Member:That’s not right is it? 100,000RMB is 20,000 Australian. So 600,000 would be around 120,000 Australian.
Interpreter: Yeah
Member:So that if you were paying 120,000RMB a month in interest you would be paying about $21,000 dollars Australian per month in interest.
Interpreter: No audible response
Member:That seems to be a lot of money for people who don’t have much income.
Member:So they would be paying 120,000RMB interest per month on 600,000RMB borrowed.
Third App:Mm
Member:Is that just the interest? Not the repayment of the principal on any of the 600,000?
Interpreter: Just interest.
The second of the two occasions commenced at around T15.39 into the second disc in the course of the Tribunal member asking the third applicant questions about the money the third applicant’s father earned. The following was said:
Member:So that would only be 4,000RMB a month?
Third App.:Mm.
Member:And you’re claiming that they would have to pay 120,000 a month interest?
Interpreter: When you repay a debt interest only that’s okay. You can also repay the principals plus interest also.
Member:Yes, but you told me that they would be paying 120,000RMB a month interest on 600,000, and you say that’s interest only, not principal.
Before me the second applicant accepted that, before the Tribunal, the third applicant had accepted that she was claiming that the interest on the loan was 120,000RMB per month. The second applicant submitted, however, that, given the third applicant initially said that the interest was 120RMB per month for each 10,000RMB, the third applicant did not process the 120,000RMB per month figure the Tribunal member put to her. The second applicant, in effect, submitted that it ought to have been obvious to the Tribunal member that, given the third applicant said the interest was 120RMB per month for each 10,000 RMB she could not have meant 120,000RMB per month. The second applicant submitted:[21]
When my wife said 1.2 cents per 10,000 and 120.00 per month when she said that maybe she wasn’t processing those information in her mind very quickly. When the member said “So that’s 20,000 a month for 600,000” that maybe when she heard that information she wasn’t able to process that very quickly so before she realised that she said “Yes”.
So if it’s 20,000 per month how could it be at the end it became 120,000 repayment per month, the number was increased by tens of times, for someone who is slow at mathematics, if she heard a number she will follow it. . . . If you say for 600,000 you have to pay 120,000 as interest per month, no one would believe it but the member didn’t give us enough time at the end to prove it so, there is lots of impossibilities hard for people to believe.
[21] Transcript, Monday 28 September 2016, T14.5
Mr Pinder, who appeared for the Minister at the adjourned hearing, submitted the Tribunal’s calculation was rational to the extent the Tribunal member was trying to reconcile the evidence of interest the third applicant gave with the 600,000RMB loan she claimed her parents took out. Mr Pinder also submitted that, mistake or no mistake, the Tribunal put to the third applicant that she was claiming that 120,000RMB interest was payable on the loan her parents had taken out, and the third applicant, therefore, had a fair opportunity to inform the Tribunal that she was not claiming that her parents were paying interest of 120,000RMB per month, but that she was claiming that the interest was 120RMB per month for each 10,000RMB, just as she had initially claimed.
There is no doubt the Tribunal member incorrectly deduced from the third applicant’s evidence that interest of 120,000RMB was payable under the loan the third applicant claimed her parents had taken out. The third applicant’s claim that the loan was subject to interest of 120RMB per month for each 10,000RMB translates into interest of 7,200RMB per month for a loan of 600,000RMB, not the 120,000RMB per month the Tribunal member deduced. The question that arises is whether the Tribunal member’s miscalculation of the monthly interest, and his putting to the third applicant on a number of occasions that she claimed that 120,000RMB worth of monthly interest was payable on the loan the third applicant claimed her parents had taken out, resulted in the Tribunal making any jurisdictional error. In my opinion, that question must be addressed by reference to s.425(1) of the Act.
Before 1 March 1999[22] s.425 of the Act provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence”. These words were construed as imposing a continuing requirement so that it had been held that s.425 was breached by an unreasonable refusal of an adjournment of a hearing.[23] Section 3 of the Migration Legislation Amendment Act (No.1) 1998 (Cth) (Amending Act) substituted the current s.425(1) which, on its face, only requires the Tribunal to “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”.
[22] B Petrie & N Bosnjak, Migration Law Annotated Migration Act with Related Legislation, Lawbook Co. 2016, page 870
[23] Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 at [25] (Wilcox J)
Shortly after the new s.425(1) was substituted, different opinions were expressed about its intended effect. In Minister for Immigration & Multicultural Affairs v Mohammad Branson J characterised the amendment as a “change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal”, and that this suggested “an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement”. [24] In De Silva v Minister for Immigration & Multicultural Affairs, on the other hand, the Full Federal Court said:[25]
The 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J [in Minister for Immigration & Multicultural Affairs v Cho] aptly describes the purpose of the current section. Adapting his Honour’s language to the amended provision, that purpose is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant ‘on the papers’. The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments.
[24] [2000] FCA 1275 at [43]
[25] [2000] FCA 765 at [9]
Shortly after the Full Federal Court’s judgment in De Silva Goldberg J, in Mazhar v Minister for Immigration & Multicultural Affairs, made observations on s.425(1) of the Act that have proved influential. One of the issues in Mazhar was whether the analysis of Kenny J in Perera v Minister for Immigration & Multicultural Affairs[26] and her Honour’s conclusion that the provision of an incompetent interpreter, which results in an applicant being prevented from giving evidence, was a breach of the old s.425(1)(a) of the Act is applicable to s.425(1) in its present form. His Honour answered that question in the affirmative. After setting out a passage from the judgment of the Full Federal Court in De Silva Goldberg J said (emphasis added):[27]
These passages suggest that where the applicant appears, but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao (par 30 above) that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1).
[26] [1999] FCA 507
[27] [2000] FCA 1759 at [31]
It is apparent from this passage that his Honour inferred from the fact that s.425(1) of the Act required the Tribunal to invite the applicant to appear to give evidence and present arguments that the hearing itself should be conducted according to certain standards. What those standards were have been explained in subsequent decisions, as discussed by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR:[28]
Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture . . . .
It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be . . . :
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
[28] [2003] FCAFC 126 at [33], [36] and [37]
Next, there are the judgments in Minister for Immigration and Citizenship v SZNVW.[29] In that case, although the correctness of SCAR was not called into question, both Keane CJ[30] (as his Honour then was) and Perram J[31] referred to Graham J’s opinion in Minister for Immigration and Multicultural Affairs v SZFDE that SCAR was wrongly decided.[32] That led their Honours to consider in some detail the obligations s.425(1) imposes on the Tribunal. After reviewing a number of authorities, Keane CJ said:[33]
In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage.
[29] [2010] FCAFC 41
[30] [2010] FCAFC 41 at [31]
[31] [2010] FCAFC 41 at [78]
[32] [2006] FCAFC 142 at [211]-[212]
[33] [2010] FCAFC 41 at [35]
Perram J noted what his Honour considered to be a curiosity of s.425(1) of the Act, namely, that it requires the Tribunal to invite an applicant to a hearing without there being a “concomitant obligation, having issued such an invitation, in fact to conduct such a hearing”.[34] His Honour also noted what he described as a “surprising outcome” of the construction that has been given to s.425(1) of the Act, namely, that an obligation that the hearing to which an applicant must be invited to attend under s.425(1) must be “a hearing in substance and not merely in form” has been “grafted – not onto the hearing for which the statute does not provide – but on the invitation to that hearing for which it does”.[35] His Honour viewed this construction as having the consequence that “concepts which really relate to the efficacy of hearings – such as fitness for trial and the ability to comprehend trial process – become transplanted from their origin as such into the alien soil of rules concerned with invitations to hearings”.[36] His Honour also observed there “are conceptual difficulties in a doctrine which makes the validity of a legal act – here the invitation – a function of events postdating it and disconnected from the person issuing it”.[37] His Honour, however, appears to have been of the view that the difficulties his Honour identified are removed if it is recognised that the basis on which s.425(1) having been construed as requiring a hearing in substance and form is the notion that the process contemplated by s.425(1) of the Act is not to be subverted. Thus, his Honour said:[38]
There are, for present purposes two aspects of these observations which warrant particular emphasis. First, the question is not whether the applicant has, or has not been treated fairly; rather, it is whether the process contemplated by s 425 has been “subverted”. Secondly, that subversion matters because if established it undermines the due administration of Part 7.
[34] [2010] FCAFC 41 at [76]
[35] [2010] FCAFC 41 at [76]-[77]
[36] [2010] FCAFC 41 at [77]
[37] [2010] FCAFC 41 at [77]
[38] [2010] FCAFC 41 at [83]
Perhaps a more straightforward analysis is that which relies on necessary implication. The requirement imposed by s.425(1) of the Act that the Tribunal invite the applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review necessarily implies there will be a hearing before the Tribunal where the applicant may give evidence and present arguments. There would otherwise be no point in requiring the Tribunal to invite an applicant to appear before it. From that necessary implication it is a short step to find by further necessary implication that the nature and conduct of a hearing must be subject to certain minimum standards. What those minimum standards may be are to be implied having regard to the text of s.425(1) of the Act and the other provisions in Part 7 of the Act. For example, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[39] relying in large part on the text of s.425(1) itself, implied the requirement that the applicant must be given reasonable notice of the issues the Tribunal considers to be relevant to the review, and that the notice that is required to be given to an applicant will depend on the issues a delegate of the Minister has determined adversely to the applicant which were dispositive of the delegate’s decision not to grant the applicant a protection visa.
[39] [2006] HCA 63
I now return to the facts of the case before me. The question is whether the Tribunal member’s miscalculation of the monthly interest, and his having on a number of occasions put to the third applicant that she claimed that 120,000RMB worth of monthly interest was payable on the loan the third applicant claimed her parents had taken out, denied the applicant a real and meaningful invitation to attend a hearing before the Tribunal to give evidence and present arguments, or whether the process contemplated by s.425 of the Act has been subverted. When answering this question, the following matters are relevant.
a)First, although the second applicant submitted to me the Tribunal member had predetermined the case, there is no evidence of actual bias. There is nothing in the evidence before me that could reasonably suggest the Tribunal deliberately miscalculated the monthly interest or was intent on not permitting the third applicant to comment on the Tribunal’s member’s calculation of the 120,000RMB monthly interest.
b)Second, although the second applicant asserted from the bar table that the third applicant may not have processed the Tribunal’s questions correctly and was slow at mathematics, the third applicant did not give any evidence to the Court to explain why she accepted before the Tribunal that she was claiming that 120,000RMB interest per month was payable on the 600,000RMB loan she claimed her parents had taken out. Nor have the applicants put on any evidence to show the third applicant suffered from some impairment which prevented her from being in a position to meaningfully participate in the hearing before the Tribunal. In those circumstances I cannot accept the second applicant’s assertion that the third applicant suffered from some impairment that prevented her from understanding what the Tribunal was putting to the third applicant.
c)Third, the Tribunal member put to the third applicant a number of times that it understood the third applicant was claiming interest of 120,000RMB was payable per month on a loan of 600,000RMB. The third applicant, therefore, had a fair opportunity to inform the Tribunal that she was not claiming that interest of 120,000RMB per month was payable on the 600,000RMB loan she claimed her parents had taken out.
d)Fourth, the Tribunal did refer to the third applicant’s claim that her parents paid interest of 120,000RMB per month in finding that the third applicant’s evidence about the financial arrangements relating to the demolition of her parents’ home and the construction of a new home raised matters of concern about the third applicant’s credibility. But the Tribunal referred to other matters. It referred to the third applicant’s evidence being vague, to the amount of the loan, and to the third applicant’s claim that her parents had retired when they decided to borrow money and construct the new home.
In these circumstances, although the Tribunal member’s error is unfortunate, I am not satisfied that, by miscalculating the amount of the monthly interest, and by putting to the third applicant that she claimed that 120,000RMB worth of monthly interest was payable on the loan the third applicant claimed her parents had taken out, the applicant was denied a real and meaningful invitation to attend a hearing before the Tribunal to give evidence and present arguments, or that the process contemplated by s.425 of the Act has been subverted.
I next address the submissions the second applicant made in relation to two other portions of the recording of the hearing before the Tribunal. The first is between T06.58 and T07.26 of the second disc of the recording, and the second is between T08.13 to T08.28 of the second disc. These were played before me at the hearing and the words spoken before the Tribunal in Chinese were interpreted at the hearing.[40] The English words spoken by the Tribunal member as I heard them on the first portion of the recording are as follows:
Well it doesn’t seem very credible to me that people who retired would enter into these arrangements with friends and money lenders to demolish a property and to take on that level of debt responsibility when they were retired.
[40] These portions were played at the hearing before me – T10.45-T11.5
The English words spoken by the Tribunal member as I heard them on the second portion of the recording are as follows:
I’m having trouble accepting what you’re telling me. It doesn’t seem very credible to me what you have told me about a large amount of this claim relating to the property and I’ve raised my concerns with you.
The question is whether these comments from the Tribunal member might lead a fair minded lay observer to reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal was required to review. When determining that question, it is important to bear in mind the nature of the functions the Tribunal is required to undertake when conducting a review:[41]
The Tribunal . . . must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
[41] NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [19] (Allsop J as his Honour then was)
Also relevant is the judgment of Flick J in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship in which his Honour noted a number of matters.[42] First, “[r]obust and forthright testing of the appellant’s claims by the Tribunal does not sustain a finding of apprehended bias”.[43] Second, although the Tribunal is not required to continually disclose its reasoning, “it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies”.[44] Third, the difficulty in any given case “is to identify those cases in which a decision-maker is expressing tentative views . . . . as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind”.[45] Fourth, “[o]ccasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias”.[46] Ultimately, his Honour said, all cases where a reviewing court has to determine whether the Tribunal’s conduct gives rise to an apprehension of bias involves the striking of a balance:[47]
. . . . between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
[42] [2013] FCAFC 80
[43] [2013] FCAFC 80 at [24] being a quote from the reasons for judgment of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] per Barker J
[44] [2013] FCAFC 80 at [27]
[45] [2013] FCAFC 80 at [27]
[46] [2013] FCAFC 80 at [31] quoting from the reasons for judgment of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
[47] [2013] FCAFC 80 at [33]
In my opinion, in the passages on which the applicants rely, the Tribunal member did nothing more than express doubts about the third applicant’s claims concerning her parents taking out a loan and about her parents’ property in general; and he did so to give the third applicant an opportunity to provide further evidence or present further arguments. The Tribunal’s expressions of doubt, by themselves, would not have led a lay observer to reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. In any event, the Tribunal’s expressions of doubt should be assessed by reference to the hearing as a whole, and in particular, by reference to the extent to which and the manner in which the Tribunal member asked the third applicant questions about her claims concerning her parents’ property and their obtaining a loan to demolish and rebuild the home. The second applicant did not submit to me that the Tribunal member did not ask, or asked an insufficient amount of, questions about these aspects of the applicant’s claims, or that the Tribunal did so in a manner that may have indicated the Tribunal member had closed his mind to the applicant’s claims.
Ground 2, therefore, fails.
Ground 3
The third ground is (errors in original):
The Tribunal failed to give the applicant an opportunity to respond the adverse information.
At paragraph 27, the third named applicant complained that she may not have understood some of the issues the Tribunal had raised during the hearing. Under the intensively stressful circumstance, the third named applicant should be provided additional time to respond the Tribunal raised issues by way of adjourning the hearing or providing the written its concerns because the applicant did not know she has such right in doing so.
This ground is directed to paragraph 27 of the Tribunal’s reasons, which is as follows:
The third named applicant said that she may not have understood some of the issues the Tribunal had raised during the hearing. The Tribunal noted that the third named applicant had not made any complaints about the quality of the interpreting during the hearing. The Tribunal asked the third named applicant if there were any particular questions that she had difficulty understanding during the course of the hearing. She said that she may have misunderstood questions about her relationship with her parents. The Tribunal responded by saying that the evidence suggested that the third named applicant did not have a close relationship with her parents and in those circumstances that raised issues about what she knew about events in China and also about her claims that she would live with her parents in China if she and the primary applicant returned in China. She said that she was taking the proceedings before the Tribunal seriously and that she believed that the incidents that she had given evidence about in China had occurred. She also claimed that she did not know what would happen to her and her daughter if she returned to China and told the Tribunal that she would not let anything happen to her daughter. She did not seek any additional time to comment or respond to the Tribunal. The Tribunal received no submissions after the hearing.
At the hearing before me the second applicant said:[48]
There is maybe some rules we didn’t fully understand about the Tribunal but the member has already expressed that there is something hard for him to believe and he had doubts so he should give us some time to provide evidence or to prepare. My wife maybe was stressed and there’s no break. She – maybe she was confused after two or three hours interview, she didn’t ask for more time at the end. I think under the circumstance that the member had doubts he needs us to provide evidence for them to consider and he didn’t give us time.
[48] Transcript of hearing, Monday 28 November 2016, T16.5
Ground 3 cannot succeed in the face of what the Tribunal records in paragraph 27 of its reasons occurred. The third applicant did not request the Tribunal give her further time or a further opportunity to provide further information. The second applicant before me did not identify what further material the applicants proposed to provide or were in a position to provide to the Tribunal or by when such material could have been provided. It is apparent from the Tribunal’s reasons, and from the length of the hearing as recorded on the discs (almost two and half hours), that the third applicant was given a reasonable opportunity to present her claims.
Ground 3, therefore, also fails.
Conclusion and disposition
The applicants have not established the Tribunal made any jurisdictional error. I propose, therefore, to order that the proceeding be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 15 December 2017
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