CIE18 (by their litigation guardian SZUWQ) v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 544
•17 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIE18 (by their litigation guardian SZUWQ) v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 544
File number(s): SYG 1278 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 17 June 2024 Catchwords: MIGRATION – Where separate protection visa application made for child applicant with claims based on actions of parents – whether Tribunal conflated application of child with application of mother leading to apprehension of bias or constructive failure to undertaken the review Legislation: Migration Act 1958 (Cth) ss 36, 424A, 476A Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
CGE15 v Minister for Immigration and Border Protection [2016] FCA 475
CPD15 v Minister for Immigration and Border Protection [2016] FCA 475
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 21 March 2024 Date of hearing: 27 February 2024
24 April 2024Place: Sydney The Applicant: By their litigation guardian in person Solicitor for the Respondents: Mr J Pinder, Mills Oakley Lawyers ORDERS
SYG 1278 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIE18
First Applicant
SZUWQ AS LITIGATION GUARDIAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The application filed on 7 May 2018 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
These proceedings are brought on behalf of the applicant by a person known by the pseudonym SZUWQ, in her capacity as the applicant’s litigation guardian. Review is sought by the applicant of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 April 2018, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant him a Protection visa (visa).
SZUWQ is the applicant’s mother. The applicant is a citizen of China and is a minor child who was born in Australia in July 2014, making him three years old at the time of the Tribunal's decision (Court Book (CB) 83). He is now almost 10 years of age.
BACKGROUND
The background to the application and summary of the Tribunal’s decision is derived from the written submissions of the first respondent but, unless otherwise indicated, does not appear to be in dispute.
On 28 October 2014, an application was made on the applicant’s behalf for the visa (CB 71 to 97). By that application, it was claimed that the applicant faced harm in China because his parents had problems with criminal gangs and loan sharks who would target the applicant as revenge, because his parents borrowed 300,000 RMB and were unable to repay it. The loan sharks were said to be asking for 1,000,000 RMB in satisfaction of the debt. It was also claimed that the police could not protect the applicant because of corruption (CB 89 to 92).
On 2 September 2015, the applicant’s mother participated in an interview with the delegate on the applicant’s behalf (applicant’s interview) (CB 112 to 113). At the applicant’s interview, the delegate put to the mother that the protection claims of the applicant’s parents had already been (separately) rejected by a delegate of the Minister and the (then) Refugee Review Tribunal (RRT) on the basis that they were not credible. The applicant’s mother maintained that she was worried the loan sharks would threaten the applicant because she had not made any repayments to the loan sharks since she had been in Australia, and there was a lot of child-smuggling in China.
On 21 September 2015, the delegate refused to grant the applicant a protection visa (CB 110 to 120). The delegate accepted the applicant’s parents owed money to a loan shark (CB 113) but found the claim did not meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (Act) as it did not have a Convention nexus (CB 115), and that independent country information indicated the applicant could obtain adequate state protection such that he did not face a real risk of significant harm (CB 118 to 119).
On 14 October 2015, the applicant applied to the Tribunal seeking review of the delegate’s decision (CB 122 to 128).
On 16 November 2017, the Tribunal invited the applicant to attend a hearing (CB 138 to 139) (applicant’s hearing), which he did attend with his parents (CB 147 to 148), and at which his mother gave evidence on his behalf. The Tribunal decision summarises the evidence given by the applicant’s mother at the applicant’s hearing (at CB 156 to 159 at [12] to [28]).
The Tribunal’s decision
On 16 April 2018, the Tribunal affirmed the delegate’s decision (CB 154 to 166).
The Tribunal identified that the applicant’s mother had raised an additional claim for the applicant during the applicant’s hearing, namely that she had been sexually assaulted in Australia by a man associated with her creditors in China, that she feared that knowledge of this incident would follow her back to China and that the applicant would suffer psychological damage as a result of the rumours about her, pertaining to the alleged sexual assault (CB 160 at [31]).
The Tribunal found the claims made for the applicant based on his mother’s outstanding debts were substantially the same as those advanced by her in her own protection visa application (CB 160 at [33]) and that a combination of inconsistencies in her claims about the loan between her protection visa application and the applicant’s protection visa application, together with the “vague, unconvincing and unsubstantiated nature” of her oral evidence, raised doubts about the credibility and reliability of the claim (CB 160 to 161 at [34]).
In particular, the Tribunal found:
(a)a translated “IOU” document provided by the applicant’s mother with her protection visa application in support of her claimed debt was “lacking in authenticity”, and gave it little weight accordingly (CB 160 to 161 at [34]);
(b)the applicant’s mother’s evidence at the applicant’s hearing regarding her “aunt” who allegedly arranged the loan, was inconsistent with evidence she had previously given in connection with her own application (CB 160 to 161 at [34]);
(c)the applicant’s mother was unable to give detailed evidence at the applicant’s hearing about repayments pertaining to the outstanding debt. The Tribunal found this detracted from the credibility of the claims (CB 161 at [35]);
(d)it to be “suspicious” that the applicant’s mother had not told her husband (who is the applicant’s father) about the debt, given they would be involved in a joint effort to try and repay it, and especially given her apparent concern for the applicant’s welfare (CB 161 at [35]); and
(e)the delay on the part of the applicant’s mother in lodging her own protection visa application, added to its concerns about her credibility (CB 161 at [36]).
While the Tribunal accepted there was evidence of a growing phenomenon of loan shark activity in China, given its credibility concerns it did not accept that the applicant’s mother had an outstanding debt, or that associates of her claimed creditor had approached her parents and pressured them for repayments (CB 161 at [37] to [38]). Having rejected the loan shark claim, the Tribunal was not satisfied the applicant faced a real chance of serious harm upon return to China from the loan shark, or any of his associates (CB 162 at [42]).
The Tribunal accepted that the account given by the applicant’s mother of her alleged sexual assault was substantially (though not entirely) consistent with the account she gave to the RRT at her own hearing (CB 161 to 162 at [39]). The Tribunal considered her explanation for the inconsistencies and accepted that the applicant’s mother may have experienced a sexual assault in Australia. However, in light of its rejection of the existence of a debt to a loan shark in China, did not accept her claim as to by whom, and why, the incident was said to have occurred (CB 162 at [40]).
The Tribunal was not satisfied there was a real chance that reports of the sexual assault would become known in China and cause detriment to the applicant in the future. The Tribunal further found that, in any event, the future psychological harm claimed was entirely speculative and would not come within the kind of serious harm contemplated by ss 91R(2) of the Act (CB 162 at [43]).
For those reasons, the Tribunal found the applicant did not satisfy the criteria set out in
s 36(2)(a) of the Act (CB 162 at [44]).
Relying on its earlier factual findings, the Tribunal also did not accept that the applicant was a person to whom Australia owed protection obligations under s 36(2)(aa) if the Act (CB 162 at [45]).
APPLICATION TO THIS COURT
The present proceedings were commenced by an application to show cause filed with the Court on 7 May 2018, and were initially docketed to another Judge of this Court.
At the first return date, the proceedings were adjourned by a Registrar for further directions on 7 June 2018, on which occasion another Registrar made orders (by consent) for the preparation of the matter for hearing. By reason of the proceedings having been commenced by SZUWQ as the applicant's litigation guardian, formal orders were not necessary to implement that representation. The orders made by the Registrar at the first Court date included a grant of leave to the applicant to amend the application on or by 30 August 2018. The proceedings were adjourned at large to await a hearing fixture to be notified to the parties administratively. No amended application was filed for the applicant in accordance with the grant of leave, or at all.
The proceedings were later placed in the central migration docket before being called-over on 5 July 2023, at which time a further grant of leave to amend was made. The proceedings were docketed to me on 13 July 2023, on which occasion I listed them for hearing and the grant of leave was made again.
The matter came before me for final hearing on 27 February 2024 (first hearing), on which occasion the applicant's mother appeared in her capacity as his litigation guardian (in his absence) with the assistance of an interpreter in the Mandarin language. The Minister was represented by a solicitor.
An Affidavit was filed in support of the originating application, which purported to have been executed by the applicant. The Court observed that at the time the Affidavit was deposed and executed, the applicant was three years old. The applicant's mother confirmed that it had in fact been deposed by her, but in the applicant’s name. I received the Affidavit document at the first hearing as a submission. At the first hearing, the Court Book was tendered for the first respondent and marked Exhibit “1R”. The Minister filed written submissions, as directed, prior to the hearing.
Adjournment of the first hearing
Two issues arose early in the first hearing which caused the Court concern that the hearing could not conveniently proceed. Accordingly, the hearing was adjourned in the following circumstances.
Prior to the first hearing, the applicant's mother had sent the following letter to the Court, ex parte, by email on 27 August 2023. The letter said as follows (anonymisation added, errors in original):
I am the mother of the applicant, [NAME]. [NAME] is my son. In addition to the grounds that I have put in my current Federal application, I wish to add and include the following reasons that I think the tribunal in my son's review application had not acted fairly and justly.
(1)I received a CD marked [FILE - 1] and dated 15.5.2020. There are three files on this CD. These files are [FILE - 2], [FILE- 3] and [FILE- 4]. While [FILE- 3] is a word file, the other two are audio files. The [FILE - 1] is related to my previous MT hearing held in 2014 and the 20832520 is related to my son's AAT hearing held in 2018. The 2014 hearing was in relation to my own application for protection visa while the 2018 hearing was in relation to my son's application for protection visa. My son and I are two different people. Therefore, I have reasonable reasons to suspect that the tribunal member of my son's application had read and listened to the materials related to my own 2014 application. Hence, the tribunal of 2018 application, under normal circumstances, could be seriously influenced and thence, would be compromised by her preconceived view. As a result, therefore, it was not possible for her to have a neutral state of mind to assess my son's application. It was noted that he questions she asked during the 2018 hearing were almost the same as hose asked in the 2014 tribunal hearing.
(2)Furthermore, although my son was the applicant for protection visa in the 2018 tribunal application, the tribunal member failed to consider my son's position in the application. My son is a child and is vulnerable. His survival is closely dependent of the fate of his parents. If I returned to China and there is anything happened to me, it will bring unrepairable damage to his survival. However, in the 2018 review application, the tribunal member's focus was just on me. She kept asking me questions about myself. She failed to address the issues that my son would face if what I claimed happened to me. Therefore, the tribunal failed to fulfill its duty as required by the migration act 1948.
(August letter)
At my direction, my Associate forwarded the August letter to the first respondent’s solicitor.
When asked at hearing to speak to the August letter, the applicant’s mother did not do so, instead making a submission as follows:
I remember clearly at the end of the hearing, I was advised that I will have a second hearing because at the first hearing, there was insufficient time to explain everything.
…
Okay. But I waited and waited, but I didn’t receive invitation to the second hearing. Instead, I received the rejection letter. So I found an agent and had the agent to look at the green book to see if I had some misunderstanding at the hearing.[1]
[1] Transcript 27 February 2024 at T06.32 to T06.41
This appeared to be an assertion that, in the course of the applicant’s hearing conducted on 31 January 2018, the Tribunal indicated that that it would hold a second Tribunal hearing, but then instead proceeded to make its decision without doing so (first issue).
By the August letter, there was some suggestion that the applicant’s mother had been sent (albeit there was no indication of by whom) a compact disc “dated 15 May 2020” (CD) containing an array of audio and Word files relating to the applicant’s Tribunal review and his mother’s review by the RRT. The suggestion being made appeared to be that, if the contents of the CD reflected the content of the Tribunal’s file in the applicant’s review, this may indicate a conflation of files and/or claims in each review. The August letter also said that at the applicant’s hearing the Tribunal member's focus was only on his mother and questions pertained only to her. Collectively, this could be taken as an allegation of apprehended bias on the part of the Tribunal (second issue).
The first respondent’s written submissions did not address the August letter at all. The solicitor who appeared for the Minister had only recently commenced at the law firm representing the first respondent and, understandably, was not able to speak with any personal knowledge to the history/carriage of these proceedings in that firm. Specifically, the solicitor was unable to assist the Court at the first hearing about the provenance of the CD, if in fact it had been sent by the law firm at all. In the circumstances, the Court makes no criticism of the first respondent’s solicitor. Particularly, given that the second issue was only being raised by the applicant’s mother for the first time at hearing, the Minister had no notice of it.
As it was necessary to resolve these additional issues (including, if necessary, by further evidence) the Court adjourned the hearing to 24 April 2024 (second hearing), in order to enable the first respondent’s solicitors to review their files, seek instructions and file any further evidence and submissions. The applicant was also given an opportunity to file further material. The Minister availed himself of the opportunity to file additional documents prior to the second hearing.
The second hearing
At the commencement of the second hearing, the following Affidavits were read for the first respondent:
(a)Affidavit of Thi Thuy Duyen Cindy Nguyen, affirmed 20 March 2024, annexing the letter from the applicant's mother (Nguyen Affidavit); and
(b)Affidavit of Thi Thuy Duyen Cindy Nguyen, affirmed 20 March 2024, annexing a Transcript of the Tribunal hearing in the applicant's case, which had been prepared by Ms Nguyen from audio files (Transcript Affidavit).
GROUNDS OF REVIEW
In the absence of the applicant having availed himself of any of the opportunities granted to him to amend his application, the grounds of review which arise for consideration are those in the originating application (errors in original):
AAT is not working with fairness and justice.
AAT didn’t give me a fair consideration but own prejudice and bias.
In addition, the Court must consider the issues outlined at [27] to [28] above. Those issues intersect with the grounds of review as follows:
(a)Ground 1 can be taken as being an allegation that the Tribunal did not accord the applicant procedural fairness. The first issue, which contends that the applicant was promised a further hearing by the Tribunal, but that it did not take place, is a species of that error: see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. Accordingly, in addition to submissions made by the applicant’s mother at hearing, the first issue will be taken as further particularising ground 1; and
(b)Ground 2 specifically alleges bias and, as outlined at [28] above, the second issue can be taken as further particularising that allegation.
Each of the grounds of review as contained in the originating application was interpreted to the applicant's mother in turn, and she was given a chance to address them.
Ground 1
The first ground alleges that the Tribunal was "not working with fairness and justice".
When asked to speak to this ground the applicant's mother again claimed that the Tribunal had indicated to her at the applicant’s hearing that it would convene a second hearing for the applicant before proceeding to its decision.
I asked the applicant's mother to take the Court to the parts of the Transcript which are now annexed to the Transcript Affidavit to corroborate those contentions. The applicant's mother said she was unable to do so.
The first respondent submits that it is clear from the Transcript of the Tribunal hearing on 31 January 2018 that the Tribunal member did not indicate that the Tribunal would convene a second hearing, nor did the Tribunal member say anything that would cause a reasonable person to believe that it would convene a second hearing.
The first respondent drew the Court’s particular attention to the following excerpt of the Transcript, regarding how the Tribunal member concluded the hearing:[2]
[2] Transcript Affidavit at 60 to 61
MEMBER: I haven’t made my mind up about your case
INTERPRETER: [speaking native language]
MEMBER: I put things to you as they’ve arisen from the evidence you’ve given
INTERPRETER: [speaking native language]
MEMBER: And the concerns, the issues that arise for me in the case
INTERPRETER: [speaking native language]
MEMBER: So, that you have a chance to put your arguments or explain, explanations to me
INTERPRETER: [speaking native language]
MEMBER: And I will now go away and consider what you have told me
INTERPRETER: [speaking native language]
MEMBER: Together with the information that I have already, the other information that I have before me from the application and the previous application
INTERPRETER: [speaking native language]
MEMBER: And also the country information about the situation in China
INTERPRETER: [speaking native language]
MEMBER: And I will look at the law and I will make a decision based on, on the law that I must apply
INTERPRETER: [speaking native language]
MEMBER: Ok so, um I will consider everything very carefully
INTERPRETER: [speaking native language]
MEMBER: But in the end, I can only make a decision on the law, and applying the legal definitions and criteria that the law requires me to apply and I must adhere to that
INTERPRETER: [speaking native language]
SZUWQ: [speaking native language]
INTERPRETER: Okay, yes I understand, thank you
MEMBER: Thank you very much, thank you interpreter for your assistance
INTERPRETER: Thank you
Noting what was said by the Tribunal member at the conclusion of the hearing, the first respondent says that no reasonable person would have left the hearing anticipating that the Tribunal would convene a second hearing, nor do anything other than proceed to make a decision on the review. The first respondent submits that this is not a case where the Tribunal member acknowledged that the purpose of the review had not been completely fulfilled at the end of the hearing: Cf Applicant NAFF (supra) at [31] per McHugh, Gummow, Callinan and Heydon JJ.
Later, the applicant’s mother conceded to the Court that she had mis-recollected events and now no longer asserted that the Tribunal had promised a second hearing in the applicant’s review. Rather, she altered the allegation to say that she had mis-recollected the events at the applicant’s hearing and that, instead, she now thought it was possible that the Tribunal member had heard the delegate say (in audio of the applicant’s interview) that there would be a second interview opportunity for the applicant. When asked what the significance of this might be to the Tribunal's own review, the applicant’s mother said she had no comments to make.
The solicitor for the first respondent said that if this is being advanced as a fresh allegation, there would still be no error. The first respondent submitted that there is no evidence before the Court that the delegate did, in fact, make such a promise. Further, even if the delegate had promised a second interview in the applicant’s case, this could not sound in jurisdictional error on the part of the Tribunal. That is said to be for two reasons.
Firstly, because this Court has no jurisdiction to review a primary decision pursuant to s 476A of the Act. As such, even if the delegate had done so, it is difficult to see how it could have given rise to an error on the part of the Tribunal. I agree.
Secondly it was submitted that any defect in the delegate’s processes was cured, in any event, by valid procedures adopted on the part of the Tribunal: Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 per Spender, Marshall, and Gyles JJ. This too is accepted.
The applicant's mother apologised to the Court for the “confusion with her memory”. When the Court sought to clarify whether, as a result of this submission, the applicant's mother was seeking to retract the first issue, she confirmed that she was.
Even if that were not so, having regard to the reasons already given, the first issue fails at a factual level by reference to the Transcript as extracted at [39] above. Even if it had been pressed, the Court is not satisfied that the Tribunal denied the applicant procedural fairness by the manner alleged, namely, by foreshadowing a second Tribunal hearing yet proceeding to decision without first adhering to that promised procedure in the sense identified in Applicant NAFF, or at all.
Having regard to the Tribunal's decision and the processes that it followed, I am otherwise not satisfied that the applicant was denied procedural fairness in any way by the Tribunal, which appears to have complied with the obligations imposed on it by the statute.
Accordingly ground 1, including as particularised by the first issue raised at the hearings, is not made out.
Ground 2
By ground 2 and the second issue (being that raised in the August letter), the applicant alleges bias on the part of the Tribunal.
When asked to speak to this ground at the second hearing, the manner in which the ground was particularised did not rise much higher than being a hunch on the part of the applicant’s mother. When asked to address the ground, the applicant's mother said she "felt" that after the Tribunal had heard the audio file/s, it would not be able to bring an open mind to the decision. The applicant's mother also said the Tribunal "looked into" the files, but didn't listen to what she said in the past. She also asked rhetorically how the Tribunal could have known what she said previously if it had not listened to the hearing audio?
Bias principles
It is well established that an allegation of bias must be distinctly made and clearly proved: see Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. In addition, a finding of actual bias would require that the Court be satisfied that the Tribunal was so committed to a conclusion already formed that the mind of the decision‐maker was incapable of alteration, whatever evidence or arguments might have been presented to them: see Jia (supra) at [72].
The principles relevant to apprehended bias in a migration context (albeit referring to Court proceedings, not the Tribunal) were distilled by the Full Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] to [36]:
[35] Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Livesey v New South Wales Bar Assn [1983] HCA 17 ; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 (Ebner); Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 ; (2011) 242 CLR 283 (British American Tobacco)).
[36] Other relevant principles are:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]–[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).
In the present case, the allegation appears to be one of apprehended bias. It appears that the gravamen of the complaint by the applicant’s mother in the August letter is that the Tribunal in the applicant’s review may have impermissibly had regard to information from the mother’s interview and/or the mother’s hearing before the RRT, given rise to a reasonable apprehension of bias.
A subjective view held by the applicant’s mother that the Tribunal may have been biased is insufficient to establish error. Those suspicions appear (at least from what was particularised at the second hearing (see [50] above)) to be additionally premised on an assumption that the Tribunal had listened to the audio of the mother's interview and/or the mother’s hearing before the RRT.
That assumption is, in turn, said to be for the following reasons:
(a)The mixed content of the CD referred to at [28] above; and
(b)the questions asked by the Tribunal member at the applicant's hearing, which she alleges were almost the same as asked during the mother’s hearing some years earlier.
The other aspect which appears to emerge from this ground/issue is that, in addition to having been influenced in some way by the content of the mother's review hearing and the outcome thereof, the instant Tribunal was also somehow mis-focused on the applicant’s mother and failed to properly consider the claims of the applicant, thereby constructively failing to undertake the review required by the Act.
The significance of the CD
The applicant has not explained (by the August letter or otherwise) the provenance of the CD. Relevantly, the applicant has not provided the letter or a copy of the letter enclosing the CD, from which the sender of the CD could be ascertained, nor has the applicant provided the CD itself, from which inferences might be drawn.
Having undertaken a review of files following the adjournment of the first hearing, the solicitor for the first respondent says there is no record of correspondence emanating from the law firm sending any CD to the applicant, nor is there any reference to such a CD or any files which correspond to the files described in the August letter. Further, the first respondent’s solicitors say that they cannot find any correspondence to the applicant in the same year that she says she received the CD.[3]
[3] Nguyen Affidavit at [10]
The first respondent says that on the current evidence, the Court cannot be satisfied as to the provenance of any CD received by the applicant. Without this information, it is submitted that the Court cannot attach any significance to the allegedly mixed composition of documents on the CD, much less be satisfied that any error/s of the kind made by the August letter are made out.
Material to which the Tribunal had regard
In this matter, the Tribunal did have regard to the protection visa file pertaining to the applicant’s mother. That conclusion is available because:
(a)the Tribunal says that it did at [10] to [11] of its decision (CB 156 and CB 160 at [32]);
(b)at [22] (CB 158), the Tribunal decision records:
The Tribunal put to her that in her previous Tribunal hearing she said her aunty is fine and has no problems with the creditor because she is known to him.
(c)at [39] (CB 161), the Tribunal demonstrated an awareness of:
the account [SZUWQ] gave to the RRT in her protection visa application.
(d)the Tribunal also demonstrated an awareness of the outcome of the protection visa application of the applicant’s mother before the RRT and the Federal Circuit Court of Australia (CB 155 to 156 at [9] to [11]).
The following parts of the Transcript of the applicant’s Tribunal hearing are also relevant to identifying material to which the Tribunal had regard:
(a)from page 6 to 7 of the Transcript Affidavit as follows:
MEMBER: The application was refused by the Department of Immigration and I’m going to the Tribunal is reviewing that decision
INTEPRETER: [speaking native language]
MEMBER: And as you'll be familiar, the Tribunal is a separate body from the Department
INTEPRETER: [speaking native language]
MEMBER: So, in reviewing the decision I’m going to take a fresh look at the application and can consider all the information including all the information you give me today
INTEPRETER: [speaking native language]
MEMBER: And in making my decision have to apply the same law that the Department applied
INTEPRETER: [speaking native language]
MEMBER: So, I’m looking in this case on the issue at whether the Applicant meets thew criteria for the grant of a protection visa.
(b)pages 8 to 9 of the Transcript Affidavit relevantly recorded the following (emphasis added):
MEMBER: So, I have in front of me I have the Department's file which has the application information provided in the application form
INTEPRETER: [speaking native language]
MEMBER: And the file also contains an audio recording of the interview you had with the Department
INTEPRETER: [speaking native language]
MEMBER: ###, I also have before me your own application for protection that you lodged some years ago
INTEPRETER: [speaking native language]
MEMBER: And the decisions that were made in relation to those applications
INTEPRETER: [speaking native language]
MEMBER: So I’ve looked at all this material before the hearing today
INTEPRETER: [speaking native language]
MEMBER: And the purpose of the hearing is to give you the opportunity to tell me anything further for me to consider
(c)pages 36 to 37 of the Transcript Affidavit also relevantly records:
MEMBER: Okay, so some of what you've just told me about this incident is different to what you told at your own, when you had your own protection application
INTERPRETER: [speaking native language]
MEMBER: You mentioned this incident in your review of your own protection application
INTERPRETER: [speaking native language]
MEMBER: But when you talked about it in before the previous Tribunal, the review um Tribunal member in that case
INTERPRETER: [speaking native language]
MEMBER: You said that you didn’t tell your parents
INTERPRETER: [speaking native language]
MEMBER: You said you called them
INTERPRETER: [speaking native language]
MEMBER: But you said you didn’t tell them about the incident.
INTERPRETER: [speaking native language]
MEMBER: Whereas you've told me that your parents were the only ones you told
INTERPRETER: [speaking native language]
MEMBER: The fact that you’ve told, this is a significant fact I would think in your claim, in your story
INTERPRETER: [speaking native language]
MEMBER: So, the fact that you've given me a different account causes me to have some difficulties of whether its accepted as truth
The first respondent places emphasis on the Transcript from the last sentence of page 8 (see emphasised extracts at [61(b)] above), where the Tribunal member identifies having in front of them “the Department's file”.
The first respondent submits that this part of the Transcript makes the following identification of files tolerably clear:
(a)That the expression “the Department's file which has the application information provided in the application form” is a reference to the applicant’s own visa application file;
(b)that the statement “the file also contains an audio recording of the interview you had" with the Department, is a reference to the evidence given by the applicant’s mother at the applicant’s interview; and
(c)when the Tribunal member goes on to said that they “also have before me your own application for protection that you lodged some years ago”, that is a subsequent identification of the file of the applicant’s mother in relation to her protection visa application, which makes no reference to any audio recording.
It is open to infer, and I do, that the Tribunal in this matter did not listen to audio from the mother's interview with the delegate or the mother’s hearing before the RRT. That is for the following reasons.
Firstly, I accept the inference is open from the aspects of the Transcript which I have just outlined that the Tribunal member was first identifying the applicant's own file and did so by reference to there being audio on that file, before then identifying the mother's file.
Next, at [32] of the Tribunal's decision in this matter, it says as follows (emphasis added):
The Tribunal has considered all of the material before it, including written and oral evidence in the present application and evidence contained in the Department file relating to the applicant’s mother’s own protection application, as well as relevant independent information before it and makes the following findings relating to the claims made.
It will be observed that in listing the material the Tribunal had before it, it identified having written “and oral evidence” in the review application the subject of these proceedings, as well as evidence contained in the Department file relating to the applicant's mother's own protection application. It is open to infer, and I do, that the absence of the specific descriptor of oral evidence in relation to the mother’s case means that while the Tribunal had before it audio files from the applicant’s interview in this case, it did not have such evidence in relation to the mother. Lastly, the Tribunal also stated (emphasis added):
So I’ve looked at all this material before the hearing today
making no reference to having listened to any evidence relating to the mother’s case.
The passages set out above from pages 36 to 37 of the Transcript Affidavit (see [61(c)] above) do not alter my view in this regard. When the statements of the Tribunal member in relation to matters pertaining to the mother's visa application are analysed, they do no more (at most) than indicate that the Tribunal member was talking about findings that had been made in the RRT decision pertaining to the mother’s own protection visa application.
To the extent that the Tribunal acknowledged having before it the delegate's decision in the applicant’s case, that decision had been provided as part of the application for review. As such, that record of decision is information which the applicant gave for the purposes of the review pursuant to s 424A(3)(b) of the Act. Within that delegate's decision is a reference to the audio file of the applicant’s interview to which the Tribunal expressly acknowledged having listened and as being summarised within the delegate's decision.
As also noted above, the Tribunal member candidly acknowledged having before it the Department file pertaining to the mother's own protection visa application. There is no reference to the Tribunal having listened to hearing audio from the RRT review either at [10] or [11]. Further, when at [32] the Tribunal makes reference to having had regard to the materials from the respective files, it expressly says that it had regard to written and oral evidence from the applicant's file but only refers to evidence from the department file pertaining to the mother's protection visa application. As noted above at [67], it is open to infer, and I do, that the Tribunal was seeking here to distinguish between written and oral evidence, and that in the absence of referring to oral evidence in relation to the mother's file, it did not listen to any audio.
I am not satisfied that there is sufficient evidence before the Court to demonstrate that the Tribunal had before it, let alone listened to, audio from:
(a)the mother's interview with the delegate in respect of her own protection visa; nor
(b)the mother’s hearing before the RRT in respect of her own protection visa.
It is also clear from the material in the Court Book that the RRT decision in relation to the applicant's mother was made by a different Tribunal member than that who heard and determined the applicant’s review (CB 49 and 154). In circumstances where the delegate's decision in this case directly referred to and summarised the applicant’s interview, I am also satisfied that the summary of the applicant’s interview was advanced by the applicant for the purposes of the review.
Consideration of bias claims
To the extent that the August letter makes the point that the applicant and his mother are different people, so much is obvious and can be accepted. It is also a matter about which the Tribunal was clearly aware. To the extent that the applicant’s mother implies that there was some sort of conflation between the claims or respective reviews processes of her and her son, such that the review in respect of the applicant miscarried, that must be rejected.
At [6] of its reasons for decision, the Tribunal expressly sets out the applicant's claims as follows:
The applicant is a 3 year old child born in Australia to parents of Chinese nationality. His reasons for claiming protection as stated in the written application are that his parents escaped China because they were afraid of loan sharks and criminal gangs. It is feared that he will be harmed because of the problems his parents had in China with the criminal gangs and loan sharks and he will be targeted for revenge. He fears this harm because his parents borrowed 300,000 RMB and are unable to repay it and they are now asking for 1,000,000 RMB. The police cannot protect him because they will support the gangs due to corruption.
From this, it is clear that the Tribunal understood the applicant's claims as being his own.
However, the applicant’s claims were necessarily assessed through the prism of their being inextricably linked to claims involving his parents. This is not a case where, for example, the child had an additional, separate and independent claim from his parents (for example, having been born overseas, being a child of a particular gender and/or in breach of a policy such as the one child policy). Rather, the applicant's claims turned solely on him being the child of parents who had themselves had problems with loan sharks in China and where said trouble may place the applicant at risk of harm, which was a basis of the mother’s own protection claims. The additional claim, namely, that he would face psychological harm by reason of rumours relating to a sexual assault she suffered, also hinged on matters pertaining to his mother.
The claims must also be viewed in light of the above as being advanced at that time solely by the applicant mother who gave evidence for her son, who was not who was still not only a minor child, but a toddler. It was logical and obvious that the Tribunal would have asked the mother similar questions to those which were asked of her in relation to her own claims by the decision-maker in her own review proceeding because the factual matrix underlying both sets of claims was the same. To the extent that this was said by the applicant mother to be further indicia of bias, or a failure on the part of the Tribunal to bifurcate the applicants from one another, I reject it.
Further, the Tribunal acknowledged that the delegate in the applicant's case had given the benefit of the doubt to the mother in respect of the loan shark claims, despite the fact that each of the delegate and the RRT member in her case had found her protection claims to lack credibility (see CB 113 at point 9 and CB 156 at [11]). The fact that the instant Tribunal was unpersuaded by the claims does not, in and of itself, mean that it blindly adhered to the findings of the RRT in the mother's case. The Tribunal gave thorough and logical reasons for rejecting the debt/loan shark claims, and the claims surrounding the motives for the alleged sexual assault of the applicant’s mother.
I am not persuaded that there is any material which suggests, let alone establishes, that the Tribunal failed to bring an independent mind to its task or, more specifically, that it was either influenced by or relied on previous findings made by the RRT in the mother's case. In the present case, while the applicant can be taken to have distinctly made certain allegations, he has not clearly proved bias of either species. Even if the applicant mother genuinely believes that the Tribunal was biased in the applicant’s case, that belief is not determinative of the question.
I have reviewed the Tribunal's decision myself and discern nothing on its face nor in the manner the review was undertaken, which would cause a hypothetical fair-minded lay observer attributed with appropriate knowledge of relevant matters to apprehend that the Tribunal brought anything other than an open mind to its task: see CPD15 v Minister for Immigration and Border Protection [2016] FCA 475 at [9] and [38] to [40] per Farrell J.[4]
[4] Special leave to appeal refused: CPD15 as Litigation Guardian for CGE15 v Minister for Immigration and Border Protection [2016] HCASL 181
The Tribunal’s decision record does not demonstrate that the Tribunal member, on review of the applicant’s protection visa application, simply imported or adopted the findings of the RRT in respect of his mother’s protection visa application, nor that it did anything other than approach the review of the applicant’s protection visa application with a mind open to persuasion as to the result.
A fair reading of the Tribunal’s decision in respect of the applicant’s protection visa application shows that it engaged critically with the evidence before it and came to its own reasoned conclusions. To the extent that the applicant’s protection claims were contingent on his mother’s, it is not bias on the part of the Tribunal to have regard to the Departmental or Tribunal files in respect of those applications, or the fact that those claims had been previously rejected: see CPD15 (supra).
Nor am I satisfied that the Tribunal in any way misfocused itself on the claims or evidence of the applicant’s mother, nor failed to properly consider the claims of the applicant, thereby constructively failing to undertake the review required by the Act.
Bias will not be established just because the Tribunal reached conclusions regarding the applicant's claims which were unfavourable. It is also not established by reference to the outcome of the review. Even if one was to accept that the applicant's mother's belief as to bias as being genuinely held, as a bare assertion it must fail. In my view, there is nothing emanating from this ground, even when understood in the manner explained by the applicant at hearing today, which gives rise to a jurisdictional error as alleged or at all. The error alleged by ground 2, including by reference to the allegations made in the August letter, is not established.
CONCLUSION
Overall, I am satisfied that the decision of the Tribunal is not affected by jurisdictional error. Absent a jurisdictional error, the decision is therefore a privative clause decision and should be dismissed. I will so order. I will hear the parties as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
0
17
1