BXR18 v Minister for Home Affairs
[2019] FCCA 202
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXR18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 202 |
| 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.5J, 36, 424, 425 |
| Cases cited: ABX15 v Minister for Immigration [2016] FCA 855 AVW16 v Minister for Immigration & Anor [2018] FCCA 932 CIE15 v Minister for Immigration & Anor [2017] FCCA 3172 Khan v Minister for Immigration [1987] FCA 713 Lafu v Minister for Immigration [2009] FCAFC 140 Minister for Immigration v SZJSS (2011) 243 CLR 164 Minister for Immigration v SZOCT (2010) 189 FCR 577 Minister for Immigration v WZARH (2015) 256 CLR 326 |
| Applicant: | BXR18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1062 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Morris of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1062 of 2018
| BXR18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 March 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 25 January 2019.
Claims before the Tribunal
The applicant is a citizen of China, from Heibei province, who arrived in Australia on 13 March 2015 on a tourist visa,[1] and subsequently applied for a protection visa on 1 June 2015.[2] The applicant claims to fear arrest or other serious harm from Chinese authorities if returned to China by reason of his status as a Falun Gong practitioner.[3] In particular, the applicant claims that:
a)he became a Falun Gong practitioner in 2012 whilst in China;[4]
b)he experienced harm whilst in China because of his Falun Gong practice. Additionally, his son and his wife had been harassed by the Chinese authorities, and experienced harm, because the applicant was a Falun Gong practitioner;[5]
c)since arriving in Australia he had continued to undertake Falun Gong activities, including distributing newspapers, practising in public, and demonstrating;[6] and
d)he left China because it was difficult to practice Falun Gong there, and he feared that he would be arrested and beaten by the authorities if he returned, because of his practice of Falun Gong whilst in Australia.[7]
[1] Court Book (CB) 20
[2] CB 1-41
[3] CB 38-41, 71
[4] CB 133 [7]
[5] CB 133-134 [8]
[6] CB 134 [9]
[7] CB 134 [10]
Tribunal's findings
The Tribunal did not accept that the applicant was a credible witness,[8] and in particular found that the applicant was “not a witness of truth” nor “a genuine Falun Gong practitioner”.[9] In this regard, the Tribunal took into account the facts that:
a)the applicant had raised new claims for the first time in the Tribunal hearing;
b)his claims regarding his son were of a “fluid nature”;
c)the applicant was able to successfully depart China; and
d)the applicant had delayed applying for protection.[10]
[8] CB 137 [33]-[34]
[9] CB 137 [33]-[34]
[10] CB 137 [33]
The Tribunal also found that the applicant had “invented” claims relating to his departure from China “to provide him with a claim for protection in Australia”,[11] and that the applicant had likewise engaged in certain activities in Australia “to strengthen his claims”.[12]
[11] CB 137 [34]
[12] CB 137 [35]
The Tribunal, in particular, did not accept that the applicant had practised Falun Gong in China or that he (or his family) had experienced difficulties with the authorities in China due to his Falun Gong practice.[13] Whilst the Tribunal accepted that the applicant had knowledge of “Falun Gong teachings and exercises” and had “engaged in Falun Gong gatherings in Australia”, it found that this was conduct engaged in solely to strengthen his protection claims, and therefore disregarded it pursuant to s.5J(6) of the Migration Act 1958 (Cth) (Migration Act).[14] The Tribunal also considered whether this participation would give rise to complementary protection concerns, but found that there was “no independent evidence” that the Chinese authorities would have knowledge of these activities.[15] The Tribunal further found that the applicant would not practise Falun Gong in China and that, on the basis of country information, there was no information suggesting that he would be targeted upon return for having sought asylum abroad. [16]
[13] CB 137 [34]
[14] CB 137 [34]-[35]
[15] CB 138 [37]
[16] CB 138 [37]
The Tribunal ultimately found that, on the evidence and claims “singularly and on a cumulative basis”, there was not a real chance that the applicant would face serious harm upon return to China.[17] The Tribunal likewise was not satisfied that the applicant faced a real risk of significant harm upon return.[18] The Tribunal therefore was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either s.36(2)(a) or (aa) of the Migration Act.[19]
[17] CB 137 [32]
[18] CB 138 [38]
[19] CB 138 [39]-[40]
The present proceedings
These proceedings began with a show cause application filed on 16 April 2018. The applicant continues to rely upon that application. The grounds in it are in a document attached to the application under the heading “Orders sought by Applicant”:
1.I am unable to accept the decision made by DIBP and AAT to refuse my application on my Falun Gong grounds. I don't think my real risk and danger in returning China have been thoroughly and carefully, considered.
2.AAT's decision is incomprehensive and imprudent, especially my Falun Gong background in China and its adverse impact on my family.
3.AAT ignored the reality to my consistency of Falun Gong practice and my active role play in various public campaigns against Chinese government's persecution after I arrived in Australia, especially the evidence provided for them.
4.I don't think AAT's decision is fair and I was treated with a fare-go. AAT's decision is based on prejudice and bias view. I don't think the member has indentified the virtue of my commitment in Falun Gong as well as my knowledge and understanding to my belief.
5.AAT's decision lack of logical, rational or probative basis for its finding and made no request for further evidence in its investigation to the details.
6.AAT gave non-convictive reason for my credibility and I have been given no chance to make any comment or explanation after hearing and it is against a fair go principle of court. AAT's doubt about my credibility is unacceptable and made me a real stressful.
(errors in original)
Under the heading “The Grounds of the Application”, the applicant repeats his essential claims for protection. The application is supported by a short affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 1 June 2018. Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from the applicant this afternoon. He told me that he does not understand Australian law, but that he is a genuine Falun Gong practitioner. He asserted the truthfulness of his claims by reference to his Falun Gong practice. He asserts that he did not need to provide clear documentary evidence of his Falun Gong practice because his truthfulness was apparent. He considers that the Tribunal decision is unfair.
I explained to the applicant that the merits of the Tribunal decision are beyond the scope of this proceeding. The applicant reiterated that he has been practising Falun Gong for seven years and that he would face a serious risk of harm in China.
Unfortunately for the applicant, his assertions do not rise above a dispute over the merits of the Tribunal decision. The Minister’s submissions at [8] attempt to distil legal propositions from the applicant’s expressed grounds.
The application may be synthesised as including the following grounds of review:
a)failure to give proper, genuine, and realistic consideration to the applicant's claims of harm, real risk, and danger in returning to China (Ground 1) and failure to properly consider the applicant's evidence (as to his Falun Gong practice in China and Australia, and its adverse impact on his family) (Ground 2) (being, “Orders” 1-3 and “Grounds” 1-4);
b)reasonable apprehension of bias and/or actual bias (Ground 3) (being, “Orders” 4);
c)insufficiency and unreasonableness of reasons (Ground 4) (being, “Orders” 2 and 5); and
d)procedural unfairness (Ground 5) (being, “Orders” 4 and 6).
The Minister’s submissions then address those grounds. I agree with those submissions.
Grounds 1 and 2
Grounds 1 and 2 rise no higher than an impermissible attempt to engage the Court in merits review. The applicant has further failed to particularise in any meaningful or precise manner the evidence and/or claims which he contends the Tribunal failed to “thoroughly and carefully, conside[r]” or “ignored the reality” of, or the manner in which the Tribunal decision is contended to have been “incomprehensive and imprudent”. Presumably this is directed to the matters raised in the “Grounds” of the application.
Although the Tribunal was required to give “proper, realistic and genuine consideration” to the applicant's evidence and claims, this requires only that there is “genuine and active intellectual engagement by the Tribunal with the claim”.[20] A reviewing Court “must exercise caution that its scrutiny does not slip into impermissible merits review”.[21]
[20] AVU15 v Minister for Immigration [2017] FCA 608 at [11]
[21] AVU15 at [11]; Khan v Minister for Immigration [1987] FCA 713; Minister for Immigration v SZJSS (2011) 243 CLR 164 at [26]–[33]; Lafu v Minister for Immigration [2009] FCAFC 140
On a fair reading of the Tribunal decision, there was no failure on the part of the Tribunal to give proper, realistic and genuine consideration to all of the applicant's evidence and claims. The Tribunal clearly and expressly had regard to the applicant's claims to be a Falun Gong practitioner,[22] his claims regarding instances of past harm (to himself and his family) whilst in China,[23] his evidence and explanation as to his ability to depart China,[24] and his explanation of his delay in applying for protection.[25] The Tribunal furthermore expressly considered whether there was a real risk or a real chance of harm if the applicant were to return to China, by reference not only to the applicant's claims of past harm and activities in China but also by reference to his claims of activities whilst in Australia.[26] The Tribunal in fact accepted aspects of these claims, in particular, that the applicant had knowledge of Falun Gong teachings and practice, and had participated in these activities in Australia.[27] However, the Tribunal also, on the basis of its credibility assessment (that the applicant “is not a witness of truth”), ultimately concluded that “the applicant learned about Falun Gong teachings and exercises for the purpose of generating a claim for protection”.[28]
[22] Decision Record (DR) [7]-[10], [19]-[21]
[23] DR [22]-[27]
[24] DR [28]-[29]
[25] DR [30]-[31]
[26] DR [32]-[38]
[27] DR [20]-[21], [33], [35]
[28] DR [34]-[35]
As a general proposition, credibility findings are a “function of the primary decision maker par excellence”.[29] Furthermore, the Tribunal was required, by s.5J(6) of the Migration Act, to disregard conduct engaged in by the applicant in Australia unless the applicant could satisfy the Tribunal that those activities were engaged in for reasons other than for the purpose of strengthening his refugee claims.[30] Nor is it necessary for a Tribunal to provide a “sub-set of reasons why it accepted or rejected individual pieces of evidence”.[31]
[29] Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 at [67] - [68]; WZANC v Minister for Immigration (No.2) [2012] FMCA 504
[30] NAST v Minister for Immigration [2002] FCA 1536 at [26]; NBKT v Minister for Immigration [2006] FCAFC 195 at [89]; MZAFH v Minister for Immigration [2016] FCA 57; CIE15 v Minister for Immigration & Anor [2017] FCCA 3172
[31] Durairajasingham at [67]-[68]; WZANC; Bayalkoti v Minister for Immigration [2017] FCA 217 at [28]; AVU15 at [12]
There was no error on the part of the Tribunal in considering or dealing with the various claims made by the applicant or the evidence relied on by the applicant. Contrary to the applicant's contention, the claims of “risk and danger in returning China” (sic) were “thoroughly and carefully, considered” (sic), the Tribunal gave comprehensive reasons in respect of those claims, and there was no “ignor[ing of] the reality” of the applicant's claims and evidence.
Ground 3
The applicant has failed to identify any material or findings in support of his complaint that the Tribunal decision was “based on prejudice and bias view”. This ground falls far short of the strict evidentiary threshold and must fail. An allegation of actual bias must be “clearly alleged and proved” and only in “rare and extreme” cases will actual bias be disclosed by the Tribunal's written reasons alone.[32] A claim of apprehended bias can only be made out where the Tribunal's conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.[33] Where apprehended bias is alleged through prejudgment, the allegation has “several distinct elements”, including that that the Tribunal was not open to persuasion on the matters allegedly prejudged.[34]
[32] SBBS v Minister for Immigration (2002) 194 ALR 749 at [43]-[44]
[33] NADH of 2001 v Minister for Immigration [2004] FCAFC 328
[34] Minister for Immigration v Jia Legeng [2001] HCA 17; NADH
So far as this claim is directed towards “the virtue of [the applicant's] commitment…[and] knowledge and understanding” of Falun Gong, the Minister submits that it is misplaced, as the Tribunal expressly accepted that the applicant had knowledge of Falun Gong and had practised Falun Gong in Australia.[35] The Minister also notes in this regard that the Tribunal was entitled to test the veracity of the applicant's claim to be a Falun Gong practitioner by reference to the knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess.[36] There is “no impediment to the Tribunal testing and evaluating” that claim[37] and no error, bias or prejudgment by the Tribunal in it proceeding to do so.
[35] DR [20]-[21], [33]-[35], [37]
[36] Minister for Immigration v SZOCT (2010) 189 FCR 577 at [6]-[10]; MZZJO v Minister for Immigration [2014] FCAFC 80; SBCC v Minister for Immigration [2006] FCAFC 129; SZQBM v Minister for Immigration [2012] FCA 551; AVW16 v Minister for Immigration & Anor [2018] FCCA 932
[37] ABX15 v Minister for Immigration [2016] FCA 855 at [24]; AVW16 at [44]; SZUMR v Minister for Immigration [2017] FCA 1376
So far as this ground is otherwise directed to the Tribunal's conclusion that the reason for that knowledge and practice was to strengthen the applicant's protection visa application, there was no error, bias, or prejudice on the part of the Tribunal. As noted above, the Tribunal was required to consider that issue, under s.5J(6) of the Migration Act, and the applicant was required to satisfy the Tribunal that he engaged in that conduct “otherwise than for the purpose of strengthening the person's claim to be a refugee”.[38] There was no error, bias, or prejudgment in the Tribunal proceeding to consider these issues.
[38] NAST at [26] per Wilcox J; NBKT at [89]; MZAFH; CIE15
Ground 4
As with Grounds 1 and 2, this ground, as expressed, rises no higher than an impermissible attempt to engage the Court in merits review. It is further unclear the basis on which the applicant has made his claim that the Tribunal's decision lacked “logical, rational or probative basis” or that it otherwise contained “non-convictive reason” (sic). A contention of “unreasonableness” requires an applicant to demonstrate that the Tribunal's findings lacked any “evident and intelligible justification”[39] or were “arbitrary, capricious or clearly unjust”.[40] That is, the decision “is one at which no rational or logical decision maker could arrive on the same evidence”.[41] These remain stringent tests.
[39] Minister for Immigration v Li [2013] HCA 18 at [76]
[40] Minister for Immigration v SZMDS [2010] HCA 16 at [130]
[41] SZMDS at [130]
In this regard that the Tribunal decision, on its face, demonstrates that the Tribunal gave genuine consideration to the applicant's claims and evidence, and the approach set out in its reasons is logical and well-reasoned. No error is revealed. As noted under Grounds 1 and 2, the Tribunal expressly and clearly considered the applicant's claims and evidence (separately and cumulatively) and formed its decision based, primarily, upon credibility assessments. There was no unreasonableness on the part of the Tribunal in doing so. Furthermore, the material findings, and the evidence and bases upon which they were made, have been sufficiently and clearly set out by the Tribunal.
Ground 5
This ground also fails to specify the conduct of the Tribunal said to have denied the applicant a “fare-go” (sic) or which would compel the Tribunal to request further evidence and/or comment from the applicant. The applicant has further failed to particularise the “practical injustice” said to have resulted.[42]
[42] Minister for Immigration v WZARH (2015) 256 CLR 326 at 337, 342; Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 14
The Tribunal complied with its obligations under s.425 of the Migration Act to invite the applicant to attend the hearing. The applicant did in fact attend and was given the opportunity to provide further oral evidence, and to rely upon further photographic evidence.[43] It is clear that the Tribunal put to the applicant various questions regarding his knowledge of Falun Gong, and that the applicant provided responses.[44] The Tribunal likewise raised with the applicant why his oral evidence as to the actions of the police in July 2014 had not previously been raised.[45] Further, the Tribunal asked the applicant questions as to his ability to obtain a passport and visa to depart China[46] and invited explanation as to the applicant's delay in filing his protection visa application.[47] In doing so, the Tribunal clearly raised with the applicant the aspects of his claims and evidence with which it had concerns, and clearly invited the applicant to provide comments or explanations in this regard. Relevantly, the delegate had likewise raised similar questions with the applicant during his protection visa interview, and made similar adverse credibility findings in his decision. In such circumstances, there was no error or procedural unfairness in the Tribunal not also giving the applicant the chance “to make any comment or explanation after hearing”.
[43] DR [2], [6], [9], [20]
[44] DR [19], [21]
[45] DR [23]
[46] DR [29]
[47] DR [30]
Furthermore, whilst the Tribunal was empowered to seek further information (under s.424 of the Migration Act), it was under no general duty to make enquiries.[48] There was no error or procedural unfairness in the Tribunal electing not to “request for further evidence in its investigation to the details” (sic). There is nothing in the available evidence or decision record to suggest that the applicant was denied a “fair go” by the Tribunal.
[48] Minister for Immigration v SZIAI [2009] HCA 39; 83 ALJR 1123 at [1], [25]; BBP15 v Minister for Immigration [2018] FCA 501 at [47]; Gajjala v Minister for Immigration & Anor [2018] FCCA 1145 at [19]
Finally, to the extent that this ground is directed to the adverse credibility findings of the Tribunal, there was no error or unfairness in the Tribunal reaching those findings. The Tribunal clearly drew the applicant's attention to certain concerns it had with his evidence (whether or not there was a requirement for it to do so). There was also sufficient available material to justify the Tribunal's decision to reject the applicant's claims, and the Tribunal set out sufficient reasons for doing so by reference to that material. Credibility findings are largely matters for the primary decision-maker, provided they are “open … on the material, … based on rational grounds and … arrived at after consideration of matters that were logically probative of the issue”.[49] The applicant's claims did not need to be accepted uncritically, and the Tribunal was entitled to take the position that it did.[50]
[49] Kopalapillai v Minister for Immigration (1998) 86 FCR 547; Durairajasingham at 423; CQG15 v Minister for Immigration [2016] FCAFC 146
[50] Minister for Immigration v Guo (1997) 191 CLR 559 at 596; Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451; Minister for Immigration v Shatku [2001] FCA 1857 [19]
Conclusion
I conclude that, while the applicant gave to me a good impression of sincerity in his claims, and while it is entirely possible that a different decision-maker might have reached a different conclusion on those claims, the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant enquired about his rights of appeal, but did not make any submissions on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 February 2019
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