CKJ17 v Minister for Immigration

[2018] FCCA 568

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 568

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – whether Authority considered all claims by applicant.

Legislation:

Migration Act 1958 (Cth)

Applicant: CKJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 516 of 2017

Judgment of: Judge Jarrett

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Brisbane

Delivered on: 9 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 5 June, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 516 of 2017

CKJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  She came to Australia in December, 2006 as the holder of a visitor visa.  That ceased in March of 2007.  After that visa ceased, she applied for and was granted a student subclass 572 visa in April of 2007.  She was granted a further student visa in October of 2010.  On 11 February 2011, a migration review tribunal affirmed a decision of a delegate of the first respondent to cancel her student visa.  She then applied for a partner subclass 820/801 visa in March of 2011 and ultimately a migration review tribunal affirmed a decision to refuse to grant that visa to her.  That decision was made in February of 2015.  She then made, in April of 2015, an application for a protection visa.  The application for that visa was declined by a delegate of the first respondent.  That decision was taken on review to the Administrative Appeals Tribunal and it is from the decision of that Tribunal that the applicant now prosecutes this application for judicial review.

2. In her initial visa application, the applicant advanced four grounds upon which she based her claims for protection.  She says that she was married and her husband’s personality changed after the birth of their son in 1993.  They lived together in Taiwan.  She says that her former husband was a difficult man to live with and was violent and she claimed that she was beaten by him and he threatened to harm her further if she did not agree to divorce him.  She and her ex-partner divorced in October, 1998 and her son remained with her.  Her ex-partner would visit her to see their son every weekend, she claimed, and in August, 2000 she says that her ex-husband raped her.  The incident apparently was not reported to the police and she forgave him.  She says that, since that incident, her ex-husband forced her to have sex with him every time he visited their son and he would beat her if she did not. 

3. She came to Australia in 2005, as I have already recorded.  She went back to Hong Kong to visit her son and at that stage, her ex-husband forced her to have sex with him again on multiple occasions.  In February, 2010 when she refused his advances, she was again beaten by her ex-husband and he told her that he would kill her if she married again.  In January, 2010 she did remarry and her ex-husband has apparently told her sister that he would kill her if he could find her. 

4. As I have indicated, a delegate of the first respondent refused the visa for which the applicant applied. That decision was made on 18 November, 2015 and she sought to have that decision reviewed by the Administrative Appeals Tribunal. The Tribunal was unable to make a decision favourable to the applicant on the papers that it received for the purposes of the review. It invited her to attend a hearing to give evidence and present arguments in relation to the issues that arose on the review. That hearing took place on 16 March, 2017. There was an interpreter who provided assistance.

5. The Tribunal’s decision, which is the subject of the review application before me, was given on 2 May, 2017.  The Tribunal, in my view, expressed considerable concern about a number of matters arising out of the applicant’s claims.  It raised those matters with her.  Ultimately, the Tribunal decided to affirm the decision under review and did so, essentially determining that a large number of the applicant’s claims were not credible.  It also determined that if some of the matters relied upon by the applicant were in fact true that, nonetheless, the chance of harm to the applicant from her ex-husband was remote by reason of a number of matters including, but not limited to, the passage of time. 

6. In these proceedings before me, the applicant has four grounds of review specified in her application for review.  She complains that she was not provided with an appropriate opportunity to comment on information which was adverse to her when the Tribunal made the decision;  that, in making the decision, the Tribunal was or appeared to be biased;  she complains that the Tribunal’s decision reveals that the Tribunal asked itself the wrong question and applied the wrong test, although she does not specify which question or which test;  and she claims that she will be harmed by her ex-husband if she returns to her country of origin.

7. The commencement of this hearing was taken up with me trying to understand why the applicant has not made any written submissions to this Court in support of her application as she was directed to do.  In the course of that discussion, it became apparent that the applicant does not contend that the Tribunal’s decision is wrong.  Rather, she says that she merely wants protection.  That tends to demonstrate that there is, indeed, no difficulty with the Tribunal’s decision from a legal point of view, but rather the applicant disagrees with the Tribunal’s decision and she seeks from this Court, merits review.  It is not the task of this Court to conduct a merits review.  A merits review of the Tribunal’s decision is not authorised by the Migration Act 1958 (Cth). The only jurisdiction this Court has is that vested in the High Court of Australia to issue constitutional writs in circumstances where the Court is satisfied that there has been jurisdictional error on the part of the Tribunal.

8. Each of the matters raised in grounds 1, 2 and 3 of the review application – it seems to me ground 4 does not raise a proper ground of review – but each of the matters raised in grounds 1, 2 and 3, if they were made out, might demonstrate that the Tribunal’s decision, as made, was attended by jurisdictional error.  But the material before me does not tend towards the proposition that those matters can be made out. 

9. The applicant, in ground 1, suggests that the Tribunal did not put adverse information to her for comment.  The difficulty with this ground is that the applicant does not identify the adverse information that she suggests was relied upon or taken into account or used by the Tribunal which ought to have been brought to her attention and in respect of which she says she was entitled to comment.  In the absence of some particularisation about that, in the absence of some identification of that material, it is difficult to see how she can make that ground out.  The material in the Court book and in particular the Tribunal’s reasons, does not tend to suggest that the Tribunal has relied upon information adverse to the applicant that it did not raise with her in the course of its hearing.  This Court is entitled to rely upon the Tribunal’s reasons for decision as an accurate description of what transpired between the Tribunal member and the applicant to the extent that it purports to record those things.  If the applicant wishes to contend that the portrayal of the interaction between the Tribunal and the applicant is not as is set out in the Tribunal’s reasons, then it is incumbent upon her to place evidence before the Court to demonstrate those matters.  She has not done so here.  In my view, ground 1 of the application reveals no jurisdictional error.

10. Ground 2 is an allegation of actual or apprehended bias.  The authorities make it very clear and have done so repeatedly that an allegation of bias is serious and it must be, to use the words of the authorities, firmly and distinctly made and clearly proven.  Ordinarily, that is almost impossible to accomplish without reference to the transcript of the hearing that took place before the Tribunal.  Here, there is no transcript of the hearing before the Tribunal.  There is nothing on the face of the Tribunal’s reasons that would tend to suggest that it was biased, either actually or ostensibly.  There is nothing that appears from the Tribunal’s reasons that would suggest that a reasonable and fair-minded observer properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might reasonably think that the Tribunal had not brought an impartial mind to determining the application for review.  I accept the first respondent’s submissions that, on a fair reading of the Tribunal’s decision and in the absence of transcript, there is no basis for any contention that the Tribunal was affected by actual or apprehended bias. 

11. The Tribunal is obliged to raise with the applicant its concerns about the evidence and other material before it.  It is often the case that applicants mistake the Tribunal undertaking that task as a sign of bias or pre-judgment on the part of the Tribunal.  Instead, it is the Tribunal discharging the obligation on it to provide procedural fairness to an applicant so as to permit an applicant to make comment upon and answer any difficulties that the Tribunal might have with the material or evidence before it.

12. The third ground asserts that the decision is affected by jurisdictional error because the wrong question was asked or the wrong test was applied.  As I have already indicated, first, the wrong question is not identified nor is the test that the Tribunal was said to have applied erroneously, nor is there any identification of the correct test.  The Tribunal instructed itself as to the law and its reasons make that clear.  There is nothing in those instructions that tend to suggest that the Tribunal applied the wrong law or misunderstood the law that was to be applied.  In my view, there is nothing in this ground of review.

13. As I have already indicated, in my view, ground 4 is in fact not a ground of review at all, but a statement of the applicant’s position.  It is, in my view, not something which demonstrates that the Tribunal has made a jurisdictional error. 

14. Apart from the matters raised by the applicant in her application for review, a reading of the Tribunal’s reasons demonstrate a thorough examination of the applicant’s case and the reasons for which the Tribunal reached the conclusions that it did are made plain by its reasoning.  In those circumstances, I am not satisfied that the application demonstrates the Tribunal’s decision is affected by jurisdictional error and the application must be dismissed.

[RECORDED: NOT TRANSCRIBED]

1. Ordinarily, costs follow the event: that is, the successful party has their costs paid by the unsuccessful party.  That rule might be displaced if the Court is satisfied there are special circumstances that exist that would justify not applying that rule.  Impecuniosity or an inability to meet a costs order is generally not seen as special circumstances for that purpose.

2. I am satisfied that I ought to apply the usual rule.  Costs should follow the event. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  9 March 2018