BXK17 v Minister for Immigration

[2020] FCCA 448

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXK17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 448

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming a fear of harm in China – applicant not believed – whether the Tribunal was biased – brought an inappropriately subjective mind to the case or erred in dealing with country information considered – whether the review process was fair considered - no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:

Hu v Minister for Immigration [2017] FCCA 1785
Minister for Immigration v SZGUR [2011] HCA 1
Minister for Immigration v SZNSP [2010] FCAFC 50
Minister for Immigration v Stretton [2016] FCAFC 11

NAHI v Minister for Immigration [2004] FCAFC 10

SZBEL v Minister for Immigration [2006] HCA 63

SZTNL v Minister for Immigration [2015] FCA 463

First Applicant: BXK17

Second Applicant BXL17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1356 of 2017

Judgment of: Judge Driver

Hearing date: 28 February 2020

Delivered at: Sydney

Delivered on: 28 February 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents Mr L. Leerdam of Mills Oakley

ORDERS

1. The title of the First Respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 3 May 2017 is dismissed.

3. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1356 of 2017

BXK17

First Applicant

BXL17
Second Applicant

And

MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 11 April 2017. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants who are a mother (applicant) and her infant son (second applicant). She also has a husband and an older son who are not parties to this application.

2. I understand that the other family members who all live together are also on bridging visas.  I also understand that the applicant’s husband had earlier made his own protection claims, which were rejected. 

3. Background facts are otherwise set out in the Minister’s outline of submissions filed on 20 February 2020.

4. The applicant is a citizen of China who last arrived in Australia on 21 October 2008 as the holder of a student (subclass 571) visa. On 8 September 2009, she lodged an application for a protection visa which was refused by a delegate of the Minister and affirmed by the then Refugee Review Tribunal.

5. The applicant then lodged multiple requests for Ministerial intervention which were either not considered or not referred.[1]

   [1] Court Book (CB) 96

6. On 11 September 2013, the applicant lodged a further application for protection under the complementary protection criterion on the basis of the following claims:

   a)the applicant was given documents by YY[2] which showed corrupt officials and hospital staff had taken advantage of their positions to collude with medical companies to extort money from patients. On 15 October 2008, she accompanied YY to Beijing to hand over material to the Supreme People’s Court. YY did not return and the applicant has not seen him since. She then herself on three occasions sent material to the Court. On 20 October 2008, the applicant left China. Following this, “ruffians” visited her home in Fujian stating that YY had left important documents with her and asked her family to hand them over, in the process of destroying furniture. The family reported the incident to the authorities but nothing was done so they left the province.[3]

   [2] The name has been anonymised

   [3] CB 17-20, 99-100

7. The second applicant was born in August 2014 and on 27 November 2014 lodged an application for a protection visa under both criteria. His claims were as follows:

   The second applicant’s parents will be forced to pay social compensation fee as he is the second child; however, they will be unable to afford this due to financial hardship. As a result, he will not be eligible to obtain a household register and will be considered a “black child” and not afforded protection by the authorities.[4]

   [4] CB 58-61, 100

8. On 20 May 2015, the delegate made a decision to refuse to grant the applicants the visa.[5]

   [5] CB 94-114

9. On 3 June 2015, the applicants lodged an application for merits review with the Tribunal and on 8 November 2016 appeared at a hearing to give evidence and present arguments.[6]

   [6] CB 120-126, 181-183

10. On 11 April 2017, the Tribunal affirmed the decision under review.[7]

    [7] CB 187-213

11. The Tribunal did not accept the applicant’s account of events.[8] It found her explanation that she travelled to Beijing with YY posing as a married couple to escape detection to be implausible, in that, it considered it would not have made a difference if the relevant people wanted to find him.[9] Further, it found her claim of how YY disappeared and she left China to be far-fetched, noting that YY did not return on the one day he went to the Court by himself and leaving most of the material with her.[10]

    [8] CB 200 [111], CB 202-203 [128-129]

    [9] CB 201 [119]

    [10] CB 201 [120]

12. In relation to the nature of the material, the Tribunal did not accept that if the hospital and medical companies had acted illegally that they would have set it out in an unenforceable written document. It noted that other evidence was allegedly of certain people having meetings which it considered difficult to show corruption. The Tribunal found that the applicant was unable to give any detail and became agitated when pressed and that her evidence was contrived and vague because the material did not in fact exist.[11]

    [11] CB 201 [121]

13. The Tribunal then considered photographs submitted in support of the claim that her family’s home was damaged. It did not accept that a roof which was caved in with tiles blown off had been caused by deliberate actions or that the interior photographs were consistent with a home that had been abandoned for six years.[12] In respect of the handwritten letters of neighbours and friends, the Tribunal noted that the evidence had not been tested and that they were issued at the request of the applicant. Given this and other concerns, the Tribunal did not place any weight on them.[13]

    [12] CB 201 [122]

    [13] CB 202 [123-124]

14. The Tribunal did not accept that the applicant had been given poor advice on the claims she could make in her first protection visa application and that even if she was, it did not explain her failure to raise her claims regarding the corruption in the hospital then.[14] The Tribunal noted that the applicant’s first application was on the basis of her religious beliefs but that this was only mentioned during her current application at the delegate’s interview and hearing.[15]  It did not accept that she was a Christian adherent in China or that she attended church or gatherings for any substantial period on the basis of her vague evidence.[16]

    [14] CB 202 [127]

    [15] CB 203 - 204 [130-144]

    [16] CB 205 [145]

15. The Tribunal accepted the applicant had commenced attending a Catholic church in Australia; however, it found her failure to attend classes, take part in Holy Communion and to arrange a church marriage indicated that she did not have a genuine commitment to the adoption of Catholic practices and beliefs.[17] In those circumstances, the Tribunal did not accept that the applicant would attempt to find and attend an underground church in China and did not accept her explanation for why she would not attend a registered church whereby it was not consistent with her conduct since the commencement of her attendance at the church here in 2011.[18]

    [17] CB 205 [146-148]

    [18] CB 205-206 [149]

16. In relation to family planning regulations in China, the Tribunal considered, on the basis of country information regarding changes in policy and law, that the second applicant would be entitled to household registration and corresponding rights and obligations as a Chinese citizen.[19] Further, the applicant and her husband would not have to pay a social compensation fee in respect of the second applicant. The Tribunal considered her attendance at church in Australia but found, also on the basis of country information, that this would not put her at any risk.[20]

    [19] CB 208 [164]

    [20] CB 209 [171]

17. The Tribunal then turned to the claims of the second applicant. It noted that it had rejected those claims in relation to social compensation and household registration and found there were no other claims made or which clearly arose from the material before it.[21] For those reasons, the Tribunal was not satisfied the second applicant met the criteria for the grant of the visa and accordingly affirmed the decision of the delegate refusing the applications.[22]

    [21] CB 210 [174-176]

    [22] CB 210 [177-179]

18. These proceedings began with a show cause application filed on 3 May 2017.  The applicant continues to rely upon that application. There are three grounds in it which are: 

    1. I believe the process behind the decision by the Tribunal in regards to my case was unfair and biased.

    2. The Tribunal acknowledges submissions of evidence and indicates they understand the relevance of these submissions to the credibility of my claims. However, the Tribunal has also indicated they have made subjective assertions in regards to these pieces of evidence of these assertions in regards to these pieces of evidence and these assertions make up part of their reasons for their decision. Specifically, I am referring to the Tribunal’s dismissal of the photos and the letters I submitted based on the face the contents of those submissions did not met the assumptions the Tribunal had made about what the content should have been. Whilist respect the Tribunal’s power to judge the contents of my evidence, it is unfair to base a decision off their subjective understanding of certain pieces of information. Without allowing me to respond to or comment on these assertions, perhaps, without further clarity the Tribunal’s judgment of the contents of these submissions would have changed. In other words, I have unfairly been deprived of my basic right to present my evidence.

    3. The Tribunal has denied my claims of experiencing difficulties with China’s family plan regulations based on DFAT country information report that the Fujian government has loosened policies on ‘Family Plan’ I do not agree the DFAT country information the Tribunal holds valid because the part of the information that is relevant to claims is notorious for uploading false country information, there are many instances exhibiting Chinese government agencies failing to uphold their own regulations and laws. Although they may have announced changes to the “Family plan policies”, the power to issue family plan penalties and distributing “hukou” still resides with the government. Consequently, it is still an area which corrupted official are able to extort families that are experiencing difficulties. Hence, I do not agree Chinese Country information is trustworthy to support the Tribunal’s decision.

19. The applicant continues to rely upon that application and it is supported by an affidavit filed with it, which I received.  I also have before me as evidence the Court Book filed on 5 October 2017. 

20. This matter was initially docketed to Judge Barnes, but was allocated to me at a call over conducted on 11 March 2019.  Both the applicant and the Minister have filed written submissions.

21. I also invited and received oral submissions from the applicant today.  The applicant proved to be a powerful advocate in support of her case.  She is articulate and had clearly thought about the Tribunal’s decision and the parts of it with which she disagrees. 

22. The applicant considers that the decision of the Tribunal is biased and unfair.  Her concern about bias is based upon her view that the Tribunal made purely subjective findings about her claims.  As I explained to her, however, a degree of subjectivity is inevitable in the conduct by the Tribunal of its functions. 

23. As to unfairness, the applicant is dissatisfied with the hearing opportunity afforded her.  She considers that she was not given a fair opportunity to explain her claims and the evidence provided.  In my view, the hearing opportunity afforded the applicant was a fair one.  It is plain from the record of the Tribunal’s decision that at the hearing, the applicant engaged in extensive discussion with the Tribunal about her claims and the evidence.  The Tribunal also referred to her earlier interview with the Minister’s delegate.

24. The applicant disagreed strenuously with the Tribunal’s finding concerning the genuineness of her Catholic faith.  The Tribunal’s finding on that issue is at [149] of its reasons. [23]  Contrary to the applicant’s submission, the Tribunal did not make a clear finding that she would attend the Government controlled Catholic church in China.  Rather, the Tribunal found that the applicant does not have a genuine commitment to the Catholic religion and for that reason, would not attend an underground Catholic church in China.

    [23] CB 205-206

25. The applicant is also concerned about the Tribunal’s treatment of her evidence in support of her claim concerning alleged dealings with corrupt officials.  That evidence is discussed in the Tribunal’s reasons at [123] and [124].  In particular, in relation to letters submitted by the applicant, the Tribunal found that these were of limited value because they appear to have been written by persons known to the applicant and to have a self-serving quality.

26. There was considerable debate at the Tribunal’s hearing between the applicant and the presiding member concerning the Chinese family planning regulations.

27. In my view, the Tribunal was entitled to assess the country information as it did and the conclusions reached by the Tribunal were open to it on the material before it.  It was the Tribunal’s firm view, expressed at [165],[24] that the applicant would not have to pay a social compensation fee in relation to the second applicant if they returned to China.

    [24] CB 208

28. That of course, says nothing about the position of her first child, who was born out of wedlock.  He is, however, not a party to this application.

29. In other respects, I agree with the submissions filed by the Minister in relation to the grounds of review.

30. In ground 1 the applicant complains that the Tribunal’s decision is affected by an apprehension of bias with the basis for the allegation found at [3]-[5] of her submissions.

31. As noted by Judge Smith in Hu v Minister for Immigration [2017] FCCA 1785 at [18]:

    The allegation of a reasonable apprehension of bias cannot be made out simply on the basis of the findings. Not only does such an approach risk confusion with an allegation of actual bias, but it also ignores the fact that the Tribunal’s reasons are necessarily made at the conclusion of a process of review. Such a process includes the consideration of the papers before the Tribunal, then an oral hearing and then consideration of all of the evidence together.

32. The relevant findings referred to by the applicant are found at [147]- [149] of the Tribunal’s reasons. The Tribunal did not accept that the applicant would attend an underground church upon return to China because, amongst other reasons, the applicant and her husband had not attended knowledge classes in order to be married in a Catholic church despite her claiming to have converted to Catholicism and the husband to be a devout Catholic. Insofar as the applicant’s ground is one of unreasonableness, those findings constituted a logical bases for why it was not satisfied the applicant was a “committed adherent of the Catholic faith” and that contrary to her submission, it was open to the Tribunal to reach that conclusion on the basis of the material before it.[25]

    [25] See Minister for Immigration v Stretton [2016] FCAFC 11 per Wigney J at [92].

33. Ground 2 contends that the Tribunal failed to provide the applicant with an opportunity to comment or respond to information that would be the reason or part of the reason for affirming the decision under review. The ground is addressed at [1]-[2] of the applicant’s written submissions.

34. In relation to the photographs and letters submitted by the applicant, no obligation on the Tribunal under s.424A of the Migration Act 1958 (Cth) (Migration Act) arose. Nothing in the photographs or letters constituted information in of itself which undermined the applicant’s claims.[26] Further, in any event, the material was submitted by the applicant herself and so fall within the exceptions to s.424A set out in the subsection (3).

    [26] See SZTNL v Minister for Immigration [2015] FCA 463 per Griffiths J at [52]-[53]

35. As [104]-[106] of the Tribunal’s reasons show, the photographs were in fact discussed with the applicant at the hearing. The Tribunal, at [122], rejected the photographs on the basis it did not consider they were consistent with what she had claimed. It is well established that a decision-maker is not required to expose his or her thought processes or provisional views for comment before making their decision.[27]

    [27] See Minister for Immigration v SZGUR [2011] HCA 1 per French CJ and Kiefel J at [9]

36. The Tribunal considered the letters supporting the applicant’s anti-corruption claims at [123]-[124] of its reasons. It found on the basis of its credibility findings regarding the applicant and the fact they were untested and self-serving that it would not place any weight on them. It was “open to the [Tribunal] to assess the credit of the [applicant] and then, in the light of that assessment, consider what weight should be given to the witness statement.”[28]

    [28] See Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 per North and Lander JJ at [33]

37. It is not clear on the face of the Tribunal’s decision record that the relevant letters were discussed at the hearing. However, the weight to be given to those letters was not the dispositive issue but rather the applicant’s credibility. Although the Tribunal is not required to specifically tell the applicant that their credibility is in issue, the applicant in the present matter was clearly on notice from the delegate’s decision and the questioning of the Tribunal that this was the case.[29]

    [29] See SZBEL v Minister for Immigration, Multicultural & Indigenous Affairs [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [47].

38. Lastly, the applicant takes issue with the Tribunal’s reliance on country information with respect to family planning regulations in China. The applicant expressed her disagreement with the findings of the DFAT[30] report at the hearing as identified by the Tribunal at [153]-[159] of its reasons. It is well established that the choice of country information and the weight to be afforded to it is a factual matter for the Tribunal to decide.[31] There is nothing to suggest that there was any relevant, contradictory country information before the Tribunal which it failed to consider. Properly understood, the applicant simply expresses disagreement with the information relied upon and findings made by the Tribunal and seeks to invite the Court to undertake impermissible merits review.

    [30] Department of Foreign Affairs and Trade

    [31] See NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [11]

1. I conclude that the applicants have failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.

2. I will order that the application filed 3 May 2017 be dismissed.

3. In consequence of the dismissal of the application, the Minister seeks an order for costs against the first applicant, fixed in the sum of $6,500.  The applicant did not wish to be heard on the question of costs.

4. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 March 2020