BZB15 v Minister for Immigration

[2016] FCCA 526

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 526

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

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

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

Cases Cited:
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: BZB15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2647 of 2015

Judgment of: Judge Emmett

Hearing date: 11 March 2016

Date of Last Submission: 11 March 2016

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

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

Solicitor for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2647 of 2015

BZB15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 28 September 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 31 August 2015 and handed down on 1 September 2015 (“the Tribunal”).

2. On 5 November 2015, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 3 December 2015.

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

4. Rule 44.12 of the Rules provides as follows:

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

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

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

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

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

5. Relevantly, r.44.13 of the Rules provides:

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

6. The first respondent, in written submissions, accurately summarised the background, the applicant’s claims, the Delegate’s decision, the Tribunal’s review, and the Tribunal’s decision, as follows:

   “Background and the applicant's case

   2. The applicant is a citizen of China who first arrived in Australia on 1 August 2013 on a Visitor (Subclass 600) visa and departed on 8 August 2013: CB 50. He then returned to Australia on 21 February 2014 on a Visitor (Subclass 600) visa, which was valid until 6 March 2014: CB 50.

   3. The applicant lodged a Protection (Class XA) visa application on 24 February 2014 (CB 1-25) and appointed a migration agent to assist him: CB 26-28.

   4. In a typed statement accompanying his visa application, the applicant outlined his written claims to fear harm because he opposed the town government for failing to distribute compensation to the villagers after their land was expropriated: CB 29-30. He claimed that in October 2011, all arable, residential and enterprise land was expropriated by the Laishui government and each household was to receive 130,000 RMB but instead the town and village cadres were suspected of misappropriating the compensation money.

   5. The applicant and another villager were nominated to lodge a petition requesting that the “corrupt situation” be investigated and in June 2013, the applicant petitioned the Baoding government who referred him to the Discipline Inspection Department (DID). The applicant claimed that the town and village cadres sought revenge and on 25 July 2013 they broke into his home and beat him and his family.

   6. On 18 August 2013, the applicant went to the DID and spoke to the Department Secretary who told him to return the next day. When the applicant returned, he was taken by the police, detained for 15 days on the charge of disturbing social order and allegedly threatened, abused and warned not to oppose the government. His wife was required to pay 2000 RMB to secure his release. The applicant felt disappointed in the government and spent 130,000 RMB to pay an agent to help him obtain a visa for Australia.

   The delegate's decision

   7. In a decision dated 22 August 2014, the delegate refused to grant the applicant a Protection (Class XA) visa: CB 45-48. The delegate relied on independent country information about the expropriation of land by the Laishui government and was not satisfied that the applicant or the other households in the village were entitled to the claimed compensation. The delegate also found that the applicant's accounts of the assault in July 2013 and detention in August 2013 were not credible: CB 58.

   The Tribunal proceedings

   8. The applicant sought review to the Tribunal on 24 September 2014: CB 62-67. He appointed the same migration agent to assist him in connection with the review: CB 64.

   9. By a letter dated 16 June 2014, the applicant was invited to attend a hearing before the Tribunal scheduled for 23 July 2014 to give evidence and present arguments relating to the issues arising in relation to the decision under review: CB 73-74. He attended the hearing on 23 July 2014 and was assisted by a Mandarin interpreter: CB 75. He also provided a copy of his passport to the Tribunal: CB 76-81.

   10. By a letter dated 27 July 2015, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason or part of the reason for affirming the decision under review: CB 83-85. The letter outlined four claims made by the applicant at his interview with the delegate on 19 August 2014 and four claims made by him at his hearing before the Tribunal on 23 July 2015. The invitation explained that the Tribunal may find that the evidence given by the applicant about the events leading to his application for a Protection visa was “inconsistent” and the Tribunal may find that his claims were not true. The applicant was required to respond by 19 August 2015.

   …

   13. On 6 August 2015, the applicant's representative sought an extension of one month to respond to the Tribunal's letter of 27 July 2015: CB 86. The Tribunal responded on that same date refusing the request on the basis that no reasonable explanation was provided as to why further time was required: CB 88-89. The Tribunal noted that the information put to the applicant for comment or response was discussed with him at the hearing and considered that the information requested through s.424(2) should already be in his possession or capable of electronic transmission from China: CB 88-89...

   14. On 19 August 2015 the applicant responded to the invitation in writing through his representative and provided further documents: CB 90-95. His representative also requested an extension of one week “to finish his explanation” but again provided no reasons why further time was required: CB 90. In any event, on 20 August 2015, the applicant through his representative provided further documents and a statement: CB 96-99…

   The Tribunal decision

   15. On 31 August 2015, the Tribunal made a decision affirming the decision under review: CB 103-117. The Tribunal found that the applicant's claims were lacking in credibility and that much of his oral evidence was either “internally inconsistent” or inconsistent with  his  prior  statements  given  at  the  Departmental  interview  and  in  the  written statement accompanying his visa application: CB 114, par 67. The Tribunal also found the applicant avoided direct questions by repeating his broad claims in a rehearsed way, found that aspects of his account were “implausible or improbable” and that his claim of fear in China was inconsistent with him travelling outside China on two occasions in 2013 but not making any enquiries to prolong his stay or seek protection: CB 114, par 67.

   16. The Tribunal considered but did not accept the reasons that the applicant advanced to explain the inconsistencies and deficiencies in his evidence namely, a lack of education, memory difficulties, nervousness and an inability to express himself   clearly: CB 114-115, pars 68-69. It also found that he gave inconsistent evidence about the period of his detention and whether the entire village or half of the village was expropriated: CB 114-115, pars 69-70.

   17. The Tribunal found that the applicant sought to avoid answering questions about where he lived following the expropriation of his land and noted the differences in his various accounts on this issue. Given the identified difficulties with his evidence it gave the purported household certificate no weight: CB 115, par 71.

   18. In addition, the Tribunal noted inconsistencies in the applicant's evidence about when he first complained about inadequate compensation (CB 115, par 72) and also had concerns with his evidence about his claimed attack on 25 July 2013 and subsequent travel to Australia. The Tribunal relied on the applicant's failure to make enquiries about obtaining protection whilst undertaking overseas travel to Australia and Japan and found this undermined his claimed subjective fear of harm:  CB 115-116, pars 73-74. The information regarding the applicant's travel to Australia and Japan was obtained from the applicant's passport copy, which he provided to the Tribunal…

   19. The Tribunal found the applicant's ability to fund three overseas journeys in less than eight months was inconsistent with his claims to be an uneducated farmer who was displaced from his land and paid inadequate compensation: CB 116, par 75.

   20. The Tribunal considered the applicant's supporting documents provided after the hearing (CB 90-99) but was not satisfied that any of them were genuine. The Tribunal found the documents were problematic because, for example, the land notice did not bear any official seal or letterhead, none of the documents were certified or notarised and the English translations were prepared either by the applicant or some other unidentified translator: CB 116, par 76. It found that the applicant's credibility was “so damaged” by the problems identified with his evidence that it was not satisfied that his documents were genuine…

   21. For these reasons, the Tribunal rejected all of the applicant's key factual claims and did not accept that  he met the criteria for  a  protection visa  under either  s 36(2)(a)  or s 36(2)(aa) of the Act: CB 116, pars 78-80. The Tribunal relied on its earlier findings of fact to conclude there was no real risk that the applicant would suffer significant harm: CB 116, par 80.”

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

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

9. The applicant confirmed that he relied on the grounds disclosed in his application for judicial review, filed on 28 September 2015. Those grounds are as follows:

   “1. RRT has discrimination on me, failed to consider my real situation.

   2. RRT and DIBP are unfair to me, I am seeking justice.”

   (Errors in original.)

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

11. I explained to the applicant that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that this Court had no power to interfere with the decision of the Tribunal unless the Court was satisfied that the decision was affected by a mistake going to its jurisdiction.  I explained to the applicant that a disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

12. The grounds of the application were then interpreted for the applicant and he was invited to say whatever he wished to say in support of the grounds.

13. In response, the applicant stated that he had a video.  I asked the applicant if he had provided a copy of that video to the Tribunal. The applicant responded that he had not.

14. I explained to the applicant that it could not be a mistake on the part of the Tribunal for it to fail to consider material that was not provided to it.

15. The applicant then stated that he had provided written evidence to the Tribunal in the nature of a medical certificate and photographs, however, the Tribunal had not considered this material.

16. In relation to the applicant’s submission that he had a video, there is nothing in the Tribunal’s decision record to suggest that the applicant provided, or requested to provide, a video to the Tribunal for its consideration. Further, there is nothing in the Tribunal’s decision record to suggest that the applicant made any reference to the existence of a video.

17. As stated above, the applicant was directed on 5 November 2015 by a Registrar of this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the Tribunal hearing. No such documents have been filed by or on behalf of the applicant.

18. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 (“NAFF”).

19. In relation to the applicant’s complaint that the Tribunal did not consider his documentary evidence, the Tribunal’s decision record identifies in detail the documents that were provided by the applicant for its consideration. The Tribunal’s decision record makes clear that the Tribunal had regard to the documents provided, explored the applicant’s claims with him in some detail at the hearing, and put to him matters of concern that it had about the documents provided and his claims. The relevant finding of the Tribunal is as follows:

    “76. In considering the applicant's claims, the Tribunal has taken into consideration the documents submitted after the Tribunal hearing. Some of these documents are in themselves problematic. In particular, the Tribunal is concerned that the expropriation of land notice does not bear any official seal or letterhead. None of the documents are certified or notarised and the English translations appear to have been prepared by either the applicant or some other unidentified translator. The applicant's credibility is so damaged by the problems in his oral and written evidence described above that the Tribunal is not satisfied that any of the documents submitted following the hearing are genuine. Nor is the Tribunal satisfied that any of the applicant’s claims relating to his past experiences in China are true.”

20. The Tribunal’s decision record makes clear that the Tribunal rejected the applicant’s claims as lacking credibility. In particular, the Tribunal found the applicant’s oral evidence given at the hearing to be either internally inconsistent, or inconsistent with prior statements given by the applicant at his protection visa interview and the written statement that accompanied the applicant’s protection visa application. The Tribunal made the following relevant finding:

    “67. The Tribunal finds the applicant's claims to be lacking in credibility. Much of the applicant's oral evidence at the Tribunal hearing was either internally inconsistent or inconsistent with his prior statements at the departmental interview and in the written statement accompanying his visa application. At several points during the hearing, the Tribunal formed the impression that the applicant sought to avoid the Tribunal's direct questions by repeating his broad claims in what appeared to be a rehearsed way. The Tribunal had to remind the applicant on several occasions to focus on the question at hand. The Tribunal finds aspects of the applicant's account of his past experiences, to the extent that it can be discerned, to be implausible or improbable. The applicant's claim to fear harm in China as a result of his past experiences is also inconsistent with the evidence that he travelled outside China on two occasions in 2013 but did not make any enquiries with regard to prolonging his stay or obtaining protection abroad.”

21. The Tribunal considered the applicant’s explanation that the inconsistencies and deficiencies in his evidence were a result of his lack of education; memory difficulties; nervousness; and, an inability to express himself clearly. However, the Tribunal found that the applicant had fabricated the claim that he had received only four years of education in China in an attempt to provide a justification for the defects in his evidence.

22. The Tribunal also had regard to the overseas travel by the applicant and his ability to fund three overseas journeys in less than eight months. The Tribunal found such conduct to be inconsistent with the applicant’s claim that he was an uneducated farmer who had been inadequately compensated after being displaced by the compulsory expropriation of his land. The Tribunal noted the applicant’s explanation for this inconsistent conduct, but did not accept it.

23. Additionally, the Tribunal noted that the applicant did not make any attempt to seek protection or prolong his first visit to Australia or Japan. 

24. Ultimately, the Tribunal comprehensively rejected the applicant’s claims to be a farmer whose land had been expropriated.  The Tribunal rejected the applicant’s claim to have petitioned or complained about any inadequate compensation received in relation to a land expropriation, and did not accept that the applicant, or any member of his family, was harmed in any way in connection with any petition or complaint about inadequate compensation.

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

1. Accordingly, the applicant’s complaints to the Court this morning that he had a video and that the Tribunal did not have regard to documents he provided do not raise an arguable case for the relief sought. 

2. The applicant’s grounds for judicial review asserting discrimination, unfairness and a failure to consider his “real situation” are otherwise wholly particularised and unsupported by any submissions save those referred to above.

3. Insofar as the applicant’s grounds for judicial review appear to be asserting bias on the part of the Tribunal, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

4. As stated above, the applicant was directed by the Court on 5 November 2015 to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the Tribunal hearing. However, no document was filed by the applicant either in accordance with those directions or otherwise. As stated above, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF).

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

6. In the circumstances, the applicant’s grounds for judicial review do not appear to identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

7. Accordingly, the grounds of the applicant’s application for judicial review do not raise an arguable case for the relief claimed.

Conclusion

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

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 28 September 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 22 March 2016