CHJ17 v Minister for Immigration

[2020] FCCA 1743

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1743

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to provide the applicant an opportunity to comment on adverse information – whether there was actual or apprehended bias by the Tribunal – whether the Tribunal applied an incorrect test of law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: CHJ17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 275 of 2017

Judgment of: Judge Street

Hearing date: 25 June 2020

Date of Last Submission: 25 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The applicant appeared in person via audio link

Solicitors for the Respondents: Ms E Warner Knight, Australian Government Solicitor, via video link

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 275 of 2017

CHJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 April 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”). 

2. The applicant was found to be a citizen of China and her claims were assessed against that country. 

3. The applicant claimed to fear harm from her ex-husband and the applicant claimed to have engaged in protesting about women's rights in Hong Kong. 

4. On 30 March 2015, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. 

5. The Delegate identified that the applicant first arrived in Australia on 1 March 2010 on a UD-976 visitor temporary visa. The applicant departed Australia on 24 May 2010. The applicant returned to Australia on 22 October 2010 and departed again on 15 January 2011. The applicant next returned to Australia on 27 February 2012 and has not since left Australia. 

6. The applicant's student visa, granted on 3 September 2013, ceased on 20 August 2014. 

7. It was not until 18 August 2014 that the applicant lodged an application for a Protection visa. 

8. The applicant failed to attend the interview before the Delegate and the Delegate was not satisfied that the applicant met the criteria for the grant of a Protection visa. 

9. The applicant applied for review on 1 May 2015. By letter dated 9 February 2017, the applicant was invited to attend a hearing on 3 April 2017. That letter informed the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. 

10. The applicant appeared on 3 April to give evidence and present arguments and was represented by her migration agent. 

11. The Tribunal identified the background to the Protection visa application and summarised the applicant's claims.

12. The Tribunal also set out the relevant law in an Appendix, A, incorporated by pagination in the Tribunal's reasons. The Tribunal also included in Appendix B independent country information. 

13. The Tribunal identified that after the application for review, no further documentary evidence had been submitted to the Tribunal. 

14. The Tribunal identified the invitation to attend the hearing, and that the applicant appeared on 3 April 2017, and that the hearing was conducted with the assistance of an interpreter in both English and Cantonese languages. 

15. The Tribunal summarised the applicant's claims and that the applicant understood that her Protection visa had been refused because she failed to attend before the Delegate. The applicant offered an explanation for her failure to attend and the Tribunal sought to explore with the applicant her claims as to why she could not return to China.

16. The Tribunal identified the applicant explaining that her ex-husband would harm her. The Tribunal explored the relationship and noted that the applicant was divorced in July 1990. 

17. The Tribunal asked the applicant about what contact she had had with her ex-husband and the Tribunal summarised the applicant's initial response, "Not at all," and then the assertions that she met him many times, because Hong Kong is a small place.

18. The Tribunal raised with the applicant country information in relation to the police being able to take action to prevent domestic violence. 

19. It is apparent that the Tribunal also sought to explore with the applicant why she had earlier said that she had not travelled to other countries, when she claimed that she did travel to other countries to try to avoid her husband, and the applicant contended that she might have ticked the wrong box. 

20. The Tribunal raised with the applicant that her student visa application identified that she was not married.

21. The applicant confirmed that she returned to Hong Kong when she first left Australia. 

22. The Tribunal sought to raise with the applicant why her ex-husband would still be pursuing her some 26 years after their divorce. The Tribunal further put to the applicant the country information as to effective protection being available. 

23. The Tribunal referred to the applicant's claim of protesting about women's rights in Hong Kong and the applicant indicated that there was a protest she had attended and said that her participation in the protest would not lead to any harm in the future.

24. The applicant indicated she was not in fear of harm from the Hong Kong authorities and referred to having recently renewed her passport. 

25. The Tribunal explored with the applicant her family and that most of her siblings are living in Hong Kong.

26. The Tribunal explored with the applicant whether she could find work and she said she could find a job. The applicant confirmed that she is not under any psychiatric or psychological treatment or taking medication. 

27. The Tribunal explored with the applicant how long she had stayed in Japan, Thailand, Vietnam and Taiwan.

28. The Tribunal referred to the applicant's evidence that she had studied English in Australia and the applicant conveyed she wanted to stay in Australia. 

29. The Tribunal found the applicant's core claims and evidence were not credible. The Tribunal found that the applicant had exaggerated her fears in relation to her ex-husband. The Tribunal did not accept the applicant's inference that there had been “many” instances where she had been harmed or harassed or threatened by her ex‑husband. The Tribunal found the applicant's evidence that she did not make complaints to the police because it is futile to be inconsistent with her claim that the police, in fact, responded on the occasions that she did make complaints. 

30. The Tribunal found that the applicant divorced her husband after a brief marriage that endured for less than two years. 

31. The Tribunal found that the applicant was not subsequently seriously harmed by her ex-husband and found that the ex-   husband's activities did not give rise to a denial of the applicant being able to find accommodation or employment.

32. The Tribunal found that the applicant's ex-husband has not made subsequent threats to seriously harm the applicant or that there is a real chance that he would make threats in the reasonably foreseeable future. 

33. The Tribunal found that the applicant does not face a real chance of serious harm from her ex-husband or anyone else. The Tribunal found that the applicant ended an unhappy marriage with her ex-husband some 26 years ago and did not accept that her ex-husband was intent to harm the applicant in any way or that there is a real chance that he will do so.

34. The Tribunal did not accept that the police declined to protect or offer their protection to the applicant and, taking into account country information, that the relevant police and support for services would not withhold their protection or services to the applicant, should she require it. 

35. The Tribunal referred to the other countries that the applicant had visited and did not accept that the applicant had travelled there for the purposes of escaping a real chance of harm. The Tribunal found that the applicant is an articulate and capable person, who would have been able to inform herself of the options for protection in these countries if she, in fact, was facing a real chance of serious harm on return to her home country.

36. The Tribunal did not accept the applicant's claim that she was unaware of the availability of seeking protection in Australia. The Tribunal referred to the delay in the lodging of the application for protection and found the applicant's delay in claiming protection further undermines her claim that she genuinely fears harm now and in the reasonably foreseeable future. 

37. The Tribunal did not accept that coming into contact with the ex-husband of the applicant gives rise to a real chance of serious harm from the ex-husband, members of his family or anyone else now or in the reasonably foreseeable future.

38. The Tribunal found that there are no other credible grounds for the applicant's claimed fear. 

39. The Tribunal found that the applicant does not face a real chance of serious harm if she returns to China now or in the reasonably foreseeable future. The Tribunal found that the applicant does not have a well-founded fear of persecution. The Tribunal found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

40. The Tribunal turned to the issue of complementary protection and found that the applicant is not of adverse interest to her ex-husband or his family members or anyone else and that the risk of suffering beatings or torture at their hands or any other kind of significant harm for reasons of her past relationship with her ex-husband or for any other reason is not a real risk. 

41. The Tribunal found that the applicant failed to meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 29 May 2017. On 2 August 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amendment application, affidavit evidence and submissions. No such documents were filed. 

2. The hearing commenced at 10.30am Australian Western Standard Time (12.30pm Australian Eastern Standard Time) using a Cantonese interpreter. In the course of the explanation by the Court as to the nature of the hearing, the applicant suggested that she had a difficulty understanding the Cantonese interpreter. The alleged difficulties expressed in English suggested that the applicant might not have understood the explanation given by the Court, although it was not apparent that the suggested difficulties were material or, given the content of the interruptions, real difficulties. For this reason, the matter was stood down to 4.15pm AWST (6.15pm AEST) while a new interpreter was arranged.

3. The Court then continued the hearing with a new Cantonese interpreter and engaged in explaining to the applicant again the nature of the hearing.  The applicant precipitously interrupted the Court in English and suggested that she did not understand the Cantonese of the new interpreter. The applicant suggested that she did not understand Cantonese or English. The applicant suggested that she did not know what “AAT” meant and interrupted the Court further during the explanation about the nature of the hearing. The Court is satisfied that the alleged difficulties in understanding the interpreter were not material or a departure from the ordinary standard of interpretation and that the applicant had a meaningful hearing. 

4. The applicant's interruptions were of a kind consistent with an endeavour to obstruct the continuation of the hearing, rather than the applicant having a real difficulty in understanding what was said. The content of the applicant’s interjections and the applicant’s use of English were consistent with the applicant understanding what was being said both in English and in Cantonese. The applicant’s interjections were consistent with the .applicant being capable and articulate but feigning difficulties to prevent the completion of the hearing with the new Cantonese interpreter.

5. It is apparent from the further conduct of the hearing that the applicant was able to understand the Cantonese interpreter as well as English and was able to respond both in Cantonese and in English. The Court is also satisfied that the applicant had a real and meaningful hearing before the Court and a proper and fair opportunity to participate in the hearing and to put submissions. The Court is satisfied that the applicant understood the new Cantonese interpreter and that the new interpreter understood the applicant despite the initial interjections by the applicant.

6. The Court asked the applicant why it was that the applicant disagreed with the decision refusing to grant her a Protection visa, and the applicant suggested that she had had interpretation errors before the Tribunal. 

7. No such ground is raised in the applicant's application. There is no evidence of any difficulty in the conduct of the hearing before the Tribunal or any difficulty by the applicant with an interpreter or in communicating with the Tribunal. The Tribunal expressly found the applicant was capable and articulate. In the absence of evidence to support the same, this ground must fail.

8. Further, the Court is satisfied from the reasons of the Tribunal that the applicant had a real and meaningful hearing before the Tribunal and was able to meaningfully participate in the hearing. The Court is not satisfied that there was any material error or material departure from the ordinary standard of interpretation to the extent that the applicant used the Cantonese interpreter at the hearing before the Tribunal. The Court has also taken into account that the applicant was represented before the Tribunal in that regard and that there is no reference to any issue being raised before the Tribunal.

9. No jurisdictional error arises by reason of the applicant's oral submissions as to alleged difficulties with the interpreter before the Tribunal.

10. The applicant's oral submissions otherwise identified a desire to stay in Australia, in substance seeking to invite the Court to engage in merits review. This Court has no power to determine the matter on compassionate or discretionary grounds and nothing said by the applicant orally identified any jurisdictional error. 

11. Ms Warner Knight, on behalf of first respondent, submitted that the applicant's oral submissions failed to identify any jurisdictional error and further addressed the three grounds in the applicant's application and why each of the three grounds must fail.

12. The applicant was disconnected from the hearing for approximately 20 seconds. The Court readmitted the applicant to the hearing, as soon as it was identified that the applicant had left the hearing. It was apparent that that occurred over a period of approximately 20 seconds. The Court repeated the substance of the submissions that had been put by Ms Warner Knight to the applicant in greater detail than just the last 20 seconds. The Court then invited the applicant to put submissions in reply. The applicant responded in ways that identified that the applicant understood what was occurring and posed a question as to how she could return when there were no flights from Australia during the COVID-19 pandemic and was seeking to insist on an answer to her question about flights from the Court.

13. It is also apparent that the applicant understood the reference in the submissions and then the summary by the Court that the Minister was seeking an order as to costs, in relation to which the applicant responded it was too much. 

14. The applicant endeavoured to assert that she had had a problem listening. This did not suggest that the applicant did not understand the Cantonese interpreter or what was being said in English or that there was any material interpretation error. The applicant's responses were consistent with the applicant in fact listening throughout the course of the hearing and understanding what was being interpreted. The Court is satisfied that the applicant has had a procedurally fair and proper hearing before this Court with the use of the new Cantonese interpreter notwithstanding the applicant's assertions to the contrary.

15. The applicant then asserted that she could not understand Cantonese or English. The applicant had responded to the hearing both in Cantonese and English. The Court finds the applicant’s responses to be inconsistent with the assertion. The applicant then asserted that it was unfair, because she had not been listening. The Court does not accept that the applicant was not listening to the hearing and her responses in the course of the hearing are consistent with the applicant having had a real and meaningful hearing. 

16. Nothing said by the applicant orally identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows: 

   1.The Second Respondent made a jurisdictional error by failing to provide the applicant an opportunity to comment on the information which is adverse to the applicant in making the decision.

   2.In making the decision the Second Respondent was or appeared to be biased.

   3.The Second Respondent applied the wrong test in making its decision.

Ground 1

1. In relation to ground 1, no information has been identified enlivening any obligation under s 424A of the Act. In the absence of particulars, ground 1 is incapable of making out any jurisdictional error. 

2. Further, on the face of the evidence before the Court, it is apparent from the Tribunal's reasons that the Tribunal raised its issues of concern with the applicant in the course of the hearing and, as earlier identified, the applicant had a real and meaningful hearing before the Tribunal.

3. There is no basis to find any breach of s 424A of the Act. 

4. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, no conduct has been identified supporting the assertion of actual or apprehended bias and, for this reason alone, that ground must fail. 

2. Further, on the face of the Tribunal's reasons, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No case of actual bias is made out. 

3. Further, the adverse findings by the Tribunal are not conduct by reason of which a fair-minded, lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No case of apprehended bias is made out.

4. Accordingly, no jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant law in Appendix A to the Tribunal's reasons. The Tribunal's reasons are consistent with the Tribunal correctly applying the relevant law in relation to both the 1951 Refugee Convention and in relation to complementary protection. There is no basis to find that the Tribunal applied the wrong test.

2. In these circumstances, the Court finds that no jurisdictional error is made out by the application.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:

Date: 15 July 2020