BZN18 v Minister for Immigration
[2019] FCCA 2600
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZN18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2600 |
| Catchwords: MIGRATION – Protection (Subclass 866) visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to investigate – whether errors in interpretation at Tribunal hearing – whether Tribunal erred in making a credibility finding – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v JiaLegeng (2001) 178 ALR 421 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 |
| Applicant: | BZN18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 209 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 August 2019 |
| Date of Last Submission: | 30 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Coole |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 209 of 2018
| BZN18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 19 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal made an oral decision on 20 March 2018 and produced a written statement of its reasons on 22 March 2018.
The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) to not grant the applicant a Protection (Subclass 866) visa (the “visa”).
The Court’s power under s.476 of the Migration Act 1958 (Cth) is limited to determining if the Tribunal has fallen into jurisdictional error. The onus is on the applicant to satisfy the Court that jurisdictional error arises in relation to the Tribunal’s decision.
The applicant appeared before this Court without legal representation. He was, however, assisted by an interpreter in the Mandarin language. The Court thanks the interpreter for her considerable assistance. The Minister was represented by Ms Coole.
In considering this application, the Court reviewed the applicant’s application for judicial review, a court book (“CB”) numbering 89 pages (which has been marked as Exhibit 1) and a written outline of submissions filed by the Minister on 8 August 2019.
Background
The background to this matter was summarised by the Minister at [3]-[9] in his outline of written submissions filed on 8 August 2019. Those submissions are accurate and are not argumentative. The Court adopts the summary provided as its own. It provides as follows.
The applicant is a national of China (CB 1). He arrived in Australia on 19 March 2007 on a student visa (CB 50).
The applicant applied for the visa on 6 July 2017 (CB 1). He claimed to fear harm in China on the basis that his family owed debts to criminal money lenders, that a criminal gang was after him and that the police were “covering this up” (CB 16-17).
The applicant was invited to attend an interview with the Department on 20 November 2017 (CB 43). The applicant failed to attend that interview.
On 21 November 2017, the delegate made a decision to refuse to grant the visa. The applicant was notified of this decision via email on the same day (CB 46).
On 8 December 2017, the applicant applied to the Tribunal for review of this decision (CB 58).
On 20 March 2018, the applicant attended a hearing before the Tribunal (CB 68). During the hearing, the applicant abandoned the written claims he had made in his visa application, stating that his lawyer had “made up the grounds” and explaining that he wanted to work in Australia to earn more money to support his mother in China (CB 78-79).
The Tribunal affirmed the delegate’s decision.
Tribunal’s decision
The Tribunal’s decision is 11 pages long. It spans 46 paragraphs and contains one attachment.
The Tribunal’s decision can be summarised as follows:
a)at [1]-[3], the Tribunal summarised the background of the matter;
b)at [4]-[9], the Tribunal detailed the criterion relevant to the visa the applicant sought and referred to the relevant policy guidelines and directions that were taken into account;
c)at [11]-[12], the Tribunal explained that it was satisfied that the applicant’s identity had been established and that he was a national of China; and
d)at [13]-[21], the Tribunal set out verbatim the applicant’s responses to the questions asked in his visa application and noted that the applicant did not attend an interview with the delegate and did not provide any further information to the Tribunal.
The Minister’s submissions at [12]-[15] accurately summarise the balance of the Tribunal’s decision. The Court adopts this summary as its own. It provides as follows.
The Tribunal noted the applicant’s concession that the original claims he had made in his visa application were false and invented by his representative (CB 78 at [22]-[24]).
The Tribunal also noted that when it questioned the applicant about the harm he would fear if he returned to China, the applicant replied ‘probably nothing’ and said that he was just worried because he had no work experience in China (CB 79 at [27]). The Tribunal accordingly rejected all of the applicant’s original claims that he had made in his visa application (CB 79-80 at [29]).
In relation to the new claims, the Tribunal referred to country information that showed China was in a growth phase and put it to the applicant that he would have good job prospects if he returned to China. The applicant agreed (CB 78-79 at [25]). The Tribunal found that the applicant would have good employment prospects should he return to China such that his capacity to subsist was not threatened (CB 80-81 at [31], [34] and [36]).
The Tribunal accepted that the applicant’s father took out a large loan and that there was a family dispute thereafter (CB 80 at [30]). However, the Tribunal did not accept that the applicant would be harmed by his father (CB 80-81 at [32] and [35]).
The Tribunal found that the applicant did not have a well-founded fear of persecution on return to China such that he satisfied the criteria for a protection visa under s.36(2)(a) of the Act (CB 81 at [37]). For similar reasons the Tribunal found that he was not owed complementary protection obligations under s.36(2)(aa) of the Act (CB 81 at [43]).
Proceedings in this Court
The applicant’s application for judicial review contains 3 grounds of review as follows:
AAT greatly underestimated the risk of my persecution in china.
I was persecuted in China because my family unable to repay money to the underground bank, and also I reveal the government’s officials’ corruption behavior, it caused that I could not go back China. AAT did not investigate my actual situation to make a decision, it is unfair for me.
AAT’s interpreter has an unclear translation.
When I was interview, the interpreter could not explain clearly, it caused that I could not answer the question of officials, ever worse, misunderstanding the question. I think that the interpreter’s behavior was irresponsible and prejudiced against me.
AAT think that my statement was inconsistent with prior application form, and then AAT’s officials think my words has no credibility. It is irresponsible behavior.
When I was interview, the official of AAT has a compulsive attitude, it caused that I was so nervous and scared. I could not state my statement in a normal condition, AAT’s officials did not listen my explanation to make a decision, it is not unfair for me.
The applicant was afforded an opportunity to provide an amended application, any affidavit evidence and written submissions prior to the hearing. Unfortunately, nothing further was provided.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an unrepresented applicant (particularly one seeking protection) should be given an opportunity to explain their grounds of review or what they perceive the Tribunal “did wrong,” the Court gave the applicant an opportunity to make oral submissions and outline any concerns he had with the Tribunal’s decision.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a merits review of the Tribunal’s decision. The Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Despite being given an opportunity to make oral submissions, the applicant chose not to do so. In the circumstances, the Court can only refer to the applicant’s grounds of review as provided in the application for judicial review.
Consideration
Ground 1
AAT greatly underestimated the risk of my persecution in china.
I was persecuted in China because my family unable to repay money to the underground bank, and also I reveal the government’s officials’ corruption behavior, it caused that I could not go back China. AAT did not investigate my actual situation to make a decision, it is unfair for me.
The Court notes the Minister’s submissions at [18]-[21] which treat this ground as an allegation that the Tribunal failed to consider a relevant consideration.
On one level, this ground largely asks for merits review. It reasserts the applicant’s claims for protection and seems to hope that the Court will come to a different conclusion. As indicated above, this Court cannot engage in an analysis of that sort.
In relation to the matters the applicant refers to in ground 1, the Tribunal identified them at [13]-[20], engaged with them at [22]-[24] and, at [29], rejected these matters on the basis that they were not true (noting that the applicant conceded had that they were not true).
To the extent that the applicant is suggesting that the Tribunal failed to “consider” these matters, that allegation is rejected.
If the applicant is suggesting that the Tribunal did not “investigate” his situation, there is no obligation for the Tribunal to “investigate” or “make inquiries”: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]. It was for the applicant to place evidence before the Tribunal and advance arguments in support of his application. The Tribunal is not required to make his claims for him: Abebe v Commonwealth (1999) 197 CLR 510.
Finally, it cannot be said here that the Tribunal’s conclusion was “unreasonable”. On the materials before the Court, the applicant had expressly (at [23] and [27]), and implicitly (at [24]), conceded that the matters the subject of this ground were not true “as far as he knew”. In light of that evidence, it was open for the Tribunal to find that the applicant had disavowed those claims and that it did not accept that the claims were true.
In light of the above, ground 1 fails
Ground 2
AAT’s interpreter has an unclear translation.
When I was interview, the interpreter could not explain clearly, it caused that I could not answer the question of officials, ever worse, misunderstanding the question. I think that the interpreter’s behavior was irresponsible and prejudiced against me.
At the time of the Tribunal hearing, the applicant had been a resident in Australia for over 10 years, including as a student. It might be reasonable to assume that the applicant had some basic comprehension of the English language. More importantly, however, at no time did the applicant raise an issue with the Tribunal in relation to the interpretation services provided to him.
The applicant has not advanced any evidence in support of his assertion that there were interpretive errors during the Tribunal hearing. Without a transcript of the hearing the Court is confined to determining from the face of the decision record if there were interpretive errors at the Tribunal hearing.
In SZUYU v Minister for Immigration & Border Protection [2018] FCA 786 at [72]-[82], Justice Wigney set out an extensive statement of the principles concerning the adequacy of interpretation in the statutory context. At [82], His Honour explained:
The focus, ultimately, is on ‘the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act’: SZSEI at [74]; SZRMQ at [8] and [17]. The question whether the process was sufficient in that regard, or miscarried, will be a ‘matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication’: SZRMQ at [9] (per Allsop CJ)
Having reviewed the Tribunal’s decision, the Court is satisfied that the applicant was able to give evidence or present arguments.
The Tribunal’s summary of the applicant’s responses to the questions asked indicates that the applicant understood the questions that were asked of him.
For example, the Tribunal refers to having noted that the construction sector in China was growing. It was put to the applicant that this might mean that he had good prospects of success in obtaining employment. The applicant’s response was that, while the job market might be good, the pay was low and this would have consequences as he would not be able to assist his mother in relation to her medical costs (at [25]).
After a break, the Tribunal asked the applicant about any risk of harm from his father, and queried whether his father had harmed his grandmother. The applicant responded that he did not believe so as his grandmother is respected and his uncles are protective of her (at [28]).
The Court is of the view that the responses the applicant provided to these questions suggest that he understood the questions put to him and was not prevented from giving evidence: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17].
The Court has also considered whether the concessions that the Tribunal states were made by the applicant could have arisen as a result of misinterpretation. The Court is satisfied that this is not the case. Here, the Tribunal did not simply accept the applicant’s concessions and move on. It is clear that the Tribunal carefully took the applicant through the written claims he made and clarified with him on more than one occasion which of the claims in the visa application were not true (at [22] and [24]). In these circumstances, the Court is satisfied that no error has occurred.
Here, there are no “proven errors in translation”. An evaluation of all of the circumstances, including the nature of the evidence the applicant gave, the lack of indication in the Tribunal’s decision of any interpretive difficulties and the level of engagement on the part of the applicant with the Tribunal (and the Tribunal’s active engagement with him), satisfies the Court that the interpretation services provided were of the necessary standard.
Ground 2 is, accordingly, dismissed.
Ground 3
AAT think that my statement was inconsistent with prior application form, and then AAT’s officials think my words has no credibility. It is irresponsible behavior.
When I was interview, the official of AAT has a compulsive attitude, it caused that I was so nervous and scared. I could not state my statement in a normal condition, AAT’s officials did not listen my explanation to make a decision, it is not unfair for me.
The Court notes the Minister’s submissions at [24]-[27]. The Minister (correctly in the Court’s view) has identified two allegations in this ground: an erroneous credibility finding and bias.
In relation to the suggestion that there was an erroneous credibility finding, the applicant appears to have misunderstood the Tribunal’s decision. At no time did the Tribunal make an adverse credibility finding about the applicant or deny his claims based on a negative credibility finding. Indeed, at [30], the Tribunal accepted all of the matters that the applicant spoke of at the hearing.
What the Tribunal did not accept were the applicant’s claims in his visa application. This was not because they were “inconsistent” but because the applicant himself had given evidence that they were not true.
There was nothing unreasonable or irrational in the Tribunal not accepting the applicant’s claims as advanced in his visa application.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v JiaLegeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Nothing on the face of the decision record suggests that the Tribunal displayed actual or apprehended bias. The Tribunal hearing went for approximately one hour and 20 minutes. The Tribunal explored with the applicant the claims made in his visa application, as well as those made at the hearing. In particular, the Court notes that at [28] the Tribunal made an attempt to explore with the applicant any chance of harm he might face at the hands of his father. This indicates to the Court the Tribunal was open to exploring any possible matters that arose in the course of the applicant’s oral evidence and assessing them in the context of the visa criterion.
To the extent that the applicant suggests that he was “anxious and scared”, the Court sympathises. However, on the materials before it, and again noting that the Court did not have the benefit of a transcript, there is nothing to suggest that the Tribunal acted in a way that gives rise to the impression that it displayed actual or apprehended bias towards the applicant.
Ground 3, accordingly, is dismissed.
Conclusion
The applicant has failed to satisfy the Court that the Tribunal has fallen into jurisdictional error. The Court is otherwise satisfied that there is no error apparent on the face of the Tribunal’s decision.
The application, accordingly, is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 17 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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