BWP15 v Minister for Immigration

[2016] FCCA 1108

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1108

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 424A

Minister for Immigration v Brar (2012) 201 FCR 240
Minister for Immigration v Chamnam You [2008] FCA 241
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration [2002] FCA 668
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
W148/00A v Minister for Immigration (2001) 185 ALR 703
WABC of 2002 v Minister for Immigration [2002] FCAFC 286

Applicant: BWP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2529 of 2015

Judgment of: Judge Driver

Hearing date: 10 May 2016

Delivered at: Sydney

Delivered on: 10 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson of Mills Oakley

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2529 of 2015

BWP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 2 September 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims based upon an alleged forced abortion.  Background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them are set out in the Minister’s outline of submissions filed on 28 April 2016.   

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 3 April 2014[1]. She lodged a protection visa application on 6 May 2014[2] and provided a three-page statement of written claims[3].  The applicant claimed that she was forced to have an abortion in January 2014 under the one child policy after falling pregnant for the second time.

   [1] Court Book (CB) 14, 65

   [2] CB 1-26

   [3] CB 27-29

The delegate

1. By a letter dated 22 January 2015, the applicant was invited to attend an interview before a delegate of the Minister on 11 February 2015[4]. The applicant attended the interview on 11 February 2015[5].

   [4] CB 54-58

   [5] CB 67.8-68.7

2. On 13 February 2015, the delegate refused to grant the applicant a protection visa as she did not accept the applicant’s claims to fear harm in China[6]. The delegate found that the applicant was not a witness of truth and had fabricated her claims to create a Convention based claim[7]. The delegate found that the applicant’s intention to live here permanently was “purely due to social and economic reasons” and she did not have a genuine fear of persecution[8]. The delegate also relied on Departmental records[9] indicating that the applicant had provided bogus identification details for her husband and son in her visitor visa application[10] and provided a counterfeit bank statement in connection with her visitor visa application[11].

   [6] CB 64-74

   [7] CB 71.8

   [8] CB 71.6

   [9] CB 52-53

   [10] CB 70.8

   [11] CB 70.9-71.1

3. Accordingly, the delegate was not satisfied that the applicant faced a real chance of persecution[12] or that there were substantial grounds for believing he would face a real risk of significant harm[13].

   [12] CB 72.9

   [13] CB 74

The Tribunal

1. On 4 March 2015, the applicant lodged an application for review of the delegate’s decision and appointed the same migration agent as her representative[14].

   [14] CB 75-76

2. By a letter dated 21 July 2015, sent by email to the applicant’s representative, the Tribunal invited the applicant to appear before it at a hearing on 19 August 2015[15]. The hearing was subsequently rescheduled to 21 August 2015[16]. The applicant attended the scheduled hearing[17].

   [15] CB 81-85

   [16] CB 86-89

   [17] CB 94-96, 102-103

3. In its decision, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa[18]. The Tribunal found that the applicant was not a credible witness and it did not accept on the basis of the concerns it identified with the credibility of her evidence that she had been forced to have an abortion.

   [18] CB 100-106

4. The Tribunal found that the applicant had not provided any convincing information to allow it to conclude that she had a well-founded fear of persecution for the reasons claimed. It found her evidence lacked relevant detail and contained various inconsistencies. These inconsistencies related to the date of her alleged abortion, who “kidnapped” her, how long the journey took and whether she was happily married[19]. The Tribunal also found on the basis of the information contained in the delegate’s decision (a copy of which the applicant provided to the Tribunal)[20] that she had provided false information about the identity of her husband and son[21].

   [19] CB 104 at [26]; CB 105 at [29]-[31]

   [20] CB 103.8. Accordingly, this information came within the exception to s.424A(1) contained in s.424A(3)(b): Minister for Immigration v Brar (2012) 201 FCR 240 at [74], citing Minister for Immigration v Chamnam You [2008] FCA 241

   [21] CB 104 at [27]; CB 105 at [32]

5. For these reasons, the Tribunal found that the applicant was not a credible witness and it did not accept that she had been forced to have an abortion[22].  It found on the evidence before it that the applicant had fabricated her claims in order to start a better life in Australia[23]. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would face any serious or significant harm for the reasons claimed if she returned to China[24].

   [22] CB 105 at [28]

   [23] CB 105 at [33]

   [24] CB 105-106 at [34]-[36]

6. In assessing the applicant’s claims, it was open to the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events[25].  The Tribunal’s conclusion on credibility was based on the cumulative effect of the matters to which it referred[26].  This was a finding of fact par excellence[27].

   [25] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282

   [26] W148/00A v Minister for Immigration (2001) 185 ALR 703 at [69]

   [27] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

The present proceedings

1. These proceedings began with a show cause application filed on 14 September 2015.  The applicant continues to rely upon that application.  She has not taken up the opportunity afforded her in procedural orders made by a registrar on 29 October 2015 to file and serve an amended application or additional evidence.  The grounds in the application are expressed in narrative form:

   When I was pregnant, my husband and mother-in-law organized a place for me to stay during my confinement for my second child away from the authorities and away from my home in Jinzhou City, Hubei Province.  In January 2013, Unfortunately, I was found by my local FAMILY PLANNING OFFICE PEOPLE who dragged me into a car back to my home town where I was forced for the abortion.

   I experience a cruelly operation of abortion which made me physically injured & mentally affected.

   If I returned to China and was pregnant, I will surely forced for abortion.  But the member of the Tribunal said: “The applicant didn’t provide any information which would leave the Tribunal to conclude that she had a well-founded fear of persecution in the reasonable future because of China one-child policy.” (No. 26 of DECISION RECORD).

   I think the Tribunal failed to take all my claim into account according to S91R of Migration Act 1958 because of the Tribunal bias against me.

2. The application misdescribes the second respondent as the Refugee Review Tribunal.  I will direct that the name of the second respondent is amended to the Administrative Appeals Tribunal.

3. The application is supported by a short affidavit filed with it which I have received.  I also have before me as evidence the court book filed on 18 November 2015. 

4. The applicant denied receipt of the court book, but exhibit R1, being a letter dated 18 November 2015 to the applicant at her nominated postal address, establishes that the court book was sent to her.  There was no explanation as to why it has not reached her.  In the event, the applicant did not object to my receipt of the court book as evidence.

5. Only the Minister prepared pre-hearing submissions in accordance with the registrar’s orders.  I invited oral submissions from the applicant today.  She repeated her claims for protection based upon her pregnancy and abortion.  I explained to her my inability to review the merits of the Tribunal decision.  I asked the applicant about the basis for her assertion that the Tribunal was biased.  The applicant’s response was, in essence, that she was not believed and her claims of harm in China are true.  That does not rise above a dispute over the merits of the Tribunal decision. 

6. The Minister’s submissions otherwise deal adequately with the grounds advanced by the applicant.  I agree with those submissions. 

7. The first three paragraphs of the applicant’s “grounds” simply repeat the applicant’s claims for protection and the Tribunal’s finding[28] that it was not satisfied that she would face persecution as a result of China’s one child policy.

   [28] at CB 104 at [26]

8. Paragraph 4 alleges that the Tribunal failed to take all her claims into account because it was biased against her.  This is a serious allegation which must be firmly and distinctly made and clearly proven[29].  It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons.  Further, no inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons[30].  For the reasons set out above, the Tribunal’s adverse credibility findings were open to it on the evidence before it and the Court cannot review the merits of the Tribunal’s decision[31]. Accordingly, this complaint cannot succeed.

   [29] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531

   [30] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]

   [31] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

9. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

10. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 12 May 2016